The first week of Prosecution evidence

On Thursday 23 January, the Prosecution finished questioning its expert witness Robyn Fraser on surveillance camera footage close to the assassination location. She was subsequently cross-examined by Mr. Edwards, counsel for the accused Badreddine and on behalf of the other defence teams. A few of the elements Mr. Edwards brought out in cross-examination were that there was no footage available of the explosion itself and further that the Lebanese authorities failed to deliver requested footage to Ms. Fraser, indicating that CCTV footage from the traffic traveling from north to south in the tunnel was "not available". Even after initially pursuing the matter, Ms. Fraser never obtained this evidence.

The next day, today, the Prosecution called another three witnesses to the stand. The first witness today, the fourth OTP witness, was Mr. Bou Rjeili, testifying through video link from Beirut. His story was similar to that of the first two OTP witnesses, his brother had been killed during the assassination on Rafik Hariri when he worked at the St. George Hotel. The very sad element of this witness's testimony was that his brother had been alive for another twelve hours after the attack, but that the witness and his family were denied entry to the crime site. Consequently, no one had found his brother until the next day, when it was too late and his brother had died.

The fifth witness was subject to protective measures, and his/her testimony was not available to the public through live streaming.

In putting on the stand its sixth witness, the Prosecution ended this week with its most moving story, making sure to impress the judges, the parties and the public. Before Fouad El Zahabi was called to testify, Mr. Milne for the Prosecution requested the judges to play a short video clip that was relevant to this witness's testimony. The Defence objected to this video being played in court, as it argued that its shocking nature outweighed the probative value thereof. Presiding Judge David Re overruled the Defence objection and the Prosecution was allowed to play the video. The video was indeed shocking. It was filmed at the time of the attack, on the location of the attack, and it showed a man in a car catching fire.

Next, the witness was called in by the Prosecutor. The witness was not present during the showing of the video, though he later indicated that he had watched the video on previous occasions, indicating that it had been broadcast on television "many, many times". The person on the video was the witness's brother, who had subsequently died of his injuries in the hospital. The witness, being emotional, indicated that the night before his brother died, his brother had gone to his mother to kiss her goodnight. The witness testified that his mother recalled that kiss every night before she went to sleep. At the end of his testimony, when Judge Re asked the witness whether he had anything else to add, he said that he would like to say to those who ordered, planned or executed the assassination that: "If you are not punished on this earth, God will punish you on Judgement Day".

An appropriate ending of the first week of the Prosecution's case, I would say.

Examination-in-chief of first OTP witnesses

The Prosecution Senior Trial Counsel Alexander Milne started today with the examination-in-chief of its first witnesses. The first two witnesses on the stand were brothers of two of Rafik Hariri's bodyguards who both died in the 14 February 2005 attack in Beirut, Lebanon.

The Prosecution's evidence will be divided in three parts; the first part will relate to the events on 14 February 2005. The second part will relate to the telecommunication evidence with respect to the preparation and falsely attributing of the crime, and the third part will relate to the telecommunication evidence and the responsibility of the accused persons.

Today's first two witnesses, Abdul Qader Darwish and Mamdouh Mohammed Tarraf, gave testimony in relation to their personal experiences on 14 February 2005 when their respective brothers, Mohammed Darwish and Ziad Tarraf, were killed. The witnesses gave short testimonies about the effect the attack had had on their respective families and themselves.

The content of their statements was uncontroversial and the Defence decided not to cross-examine them. Presumably, there was nothing to gain for the Defence in cross-examining them as their story was very personal and undoubtedly truthful. I imagine that the Defence's strategy is not to discredit the factual Prosecution witnesses. Given that counsel for the Defence are not in contact with their clients, as this is an in absentia trial, they do not receive instructions from their clients. As the Prosecution case will unfold, it will be interesting to see how this will affect the Defence counsel's strategies in dealing with the Prosecution evidence to be presented at trial.

The third witness on the stand was Robyn Fraser, a former investigator for the Tribunal's Office of the Prosecutor between 2009 and 2011. In that capacity, she investigated and drafted a report on the surveillance camera footage in and near the Suleiman Franjieh tunnel close to the location where Hariri and his bodyguards were assassinated. The footage shown by the Prosecution to the expert witness focused on a white lorry, presumed to be the Mitsubishi van that carried the explosives to the site of the attack.

Ms. Fraser indicated that the time stamps on the footage of the cameras was not accurate, and that she was not able to explain the discrepancies, though she indicated that the stamps could be placed manually.

The witness's evidence further indicated that the van drove through the tunnel about an hour before the attack (time of the attack was 12:55 pm), and about an hour later the same camera located the van again, where it drove in the direction of the location where the attack would take place.

This witness will continue her evidence tomorrow, Thursday 23 January.

Defence opening statements

Today Defence counsel for the first two defendants, Mr. Mustafa Badreddine and Mr. Hussein Hassan Oneissi, had the opportunity to present their opening statements, after the Prosecution and Legal Representatives of the Victims presented their opening speeches last Thursday and Friday.

Mr. Korkmaz for Badreddine was the first to start today, and he started of by announcing that his remarks would be short as this was not the appropriate time for the Defence to highlight its case. The Prosecution must prove that his client is guilty; it is not for the Defence to prove his innocence. He said that there have been significant delays in this trial, and that they were not caused by the Defence. He highlighted the lack of cooperation with the Defence by the Lebanese state, which was later reiterated by counsel for Oneissi. Both teams also emphasized the fact that the whilst the Prosecution had ample time and means to investigate and prepare for the trial, the Defence lacked both time and means to do so.

Mr. Courcelle-Labrousse for the defendant Oneissi elaborated on the fact that this is an in absentia trial, and that he has not had any contact with his client, be it direct or indirect. Oneissi is not participating in his trial, and his counsel does not know why: is it for personal reasons, or political reasons? He raised the question, as did his co-counsel Mr. Yasser Hassan after him, whether his client was even alive. Mr. Courcelle-Labrousse furthermore indicated that a lot of the information gathered before and during the Prosecution's investigation remains unavailable to the judges, thus suggesting that the Prosecution has been selective in its presentation of the evidence available to the Chamber.

Counsel for both defendants already alluded to their defense strategies in regard to the evidence based on the telephone records analysis put forward by the Prosecution. The Prosecution attributed guilt on the basis of technical analysis of phone records and the geographical colocation thereof. Mr. Korkmaz stressed that the Prosecution has no documentary evidence or witness statement that would identify his client as taking part in the 14th February 2005 attack. Rather, the Prosecution deduces its conclusion from circumstantial evidence alone, which is insufficient to find proof of guilt beyond reasonable doubt, states counsel for Oneissi.

Another interesting element of the Defence strategy seems to relate to the Prosecution's failure to explore alternative scenarios. If the Defence can indeed prove that relevant alternative scenarios have not been (properly) investigated by the Prosecution, this would be an effective strategy and one of the few strategies that counsel can realistically have in an in absentia trial. Given that the first two Defence teams chose for short opening statements and failed to mention examples, it remains to be seen whether they can indeed prove that the Prosecution failed to search for alternative scenarios and whether those were realistic in relation to the theory as set out in the Indictment.

The trial is expected to continue this Wednesday 22nd January with the first Prosecution witnesses; the other two Defence teams will not hold opening statements.

First day of trial

Today was the first day of the trial against the four suspects in the Ayyash et al. case concerning the attack on former Lebanese Prime Minister Rafik Hariri on 14 February 2005. The Prosecution held its opening speech, marked by a detailed description of the evidence it has collected against the four accused and a fifth accused, Merhi, whose case has not (yet) been joined to the Ayyash case.

The evidence the Prosecution has collected over the years seems to be limited mostly to indirect evidence. As the opening speech showed, most of its case seems to be built on phone records, and patterns of phone calls between the accused and several other persons. The accused persons are said to have owned several phones that were connected to each other through different networks of phones, some connected only to each other, whilst other phones were also used to contact the outside world. The Prosecution has conveniently identified these different networks of phones by giving each group a color in the indictment, and setting out the details of each group.

My impression of today's opening speech was that it was not as clear, dramatic and interesting as one would expect an opening statement to be. An opening statement gives the party the chance to present its case, generally without being interrupted by the opposing party. The Prosecutor, Norman Farrell and his Senior Trial Counsel, Graeme Cameron, outlined details of the evidence against the four, and in my view did not take this opportunity to let the public feel the outrage of these terrorist attacks. Apart from a few interesting remarks at the beginning which could make good headlines, the focus was on the core of the evidence, the phone patterns.

Perhaps the Prosecution did not want to put on a show with the accused's benches empty, thus avoiding to appear too strong in comparison to the absent defendants? Or perhaps they wish to inform the defense that they are serious about this trial and by focusing on the--boring--evidence, they want to send a message that they are not overly dramatizing this event? In any case, for the observer the opening of this trial was, to say the least, not too interesting. Tomorrow the Prosecution will finalize its opening speech, and then it will be the victims' turn. On Monday, the defense teams are expected to give their opening speeches, and it will be interesting to see what their statements will be like and how they will respond to the Prosecution's case.

In absentia trials at the STL

The Special Tribunal for Lebanon (STL) is currently trying four accused persons (a fifth accused's case may be joined to the main case) in absentia, i.e. these persons have not been arrested, but the trial against them proceeds nonetheless. This is a unique phenomenon in international criminal law; none of the other tribunals have employed this procedure.

Though unique in international law, in absentia trials are more common in civil law systems. The idea behind in absentia trials is that the accused person is informed of the proceedings against him, but chooses not to be present. The court has to ensure that every effort has been made to make sure that the suspect is aware of the impending proceedings against him. Once thishas been established, the court can conclude that the person has voluntarily decided to not be present at the criminal trial against him, allowing the trial to proceed.

If, however, at some point in the future, the person is arrested, he has the right to a retrial. Of course, the evidence is fresher at the initial in absentia trial, so there will always be an issue of the validity of the evidence of the initial trial to be used at the retrial. For instance, the witnesses' memories of the incident will be clearer during the initial in absentia trial than in a potential future retrial, simply because more time will have passed by then.

More specifically, in absentia trials are part of the French legal system, upon which the Lebanese criminal code is based. The law applicable to the STL proceedings is based in turn on the Lebanese criminal system.

Whether or not in absentia trials are in line with current international human rights provisions is disputed. Ralph Riachy, for instance, argues that:

"[T]rial in absentia is still a justifiable mechanism of criminal justice provided that certain rules are observed and essential safeguards are respected."

(Ralph Riachy, "Trials in Absentia in the Lebanese Judicial System and at the Special Tribunal for Lebanon," Journal of International Criminal Justice 8 (2010) at 1297).

This quote represents the general view civil law systems have. However, one must keep in mind that there are fundamental differences between trials at the domestic level and trials before international tribunals. For one, evidence gathering is much less complicated at the domestic level, where the police is mainly in charge of this process, and has a clear authority to do so. If a witness needs to give evidence, he will be requested to do so, and if he refuses to cooperate, he will be subpoenaed. In an international investigation, there is no such clear authority, and the gathering of evidence is much more complicated. Not only is there the international aspect of investigations in a foreign country which complicates the process, complications may arise at the political level as well. The fact that the accused persons have not been handed over to the Tribunal provides evidence for this.

If an in absentia trial is commenced against such persons, without full participation from the defense, are the individuals' human rights still fully respected? Any trial whereby the Prosecution has been in a position to build a case against a defendant in such a case will almost certainly lead to a conviction, because the defense will be limited to undermining the Prosecution's case, and cannot present its own version of the events.

This is not to say that any international trial in absentia inherently violates basic human rights standards, but one needs to keep in mind that the domestic standards cannot simply be transposed; the international context and its complexities must be taken into consideration. Whilst it is understandable that refusal to hand over suspects alone cannot stop the international community from pursuing criminal prosecution of these suspects of the Hariri assassination, the STL must be very cautious in these proceedings. Failure to fully respect the absent defendants' human rights will lead to a mockery of justice. If that happens, the legacy of this Tribunal will not be taken seriously in the future. The defendants will suffer from injustice from a tribunal established by the international community, a community that should strive towards creating and strengthening the adherence to human rights standards. It remains to be seen how the judges will deal with the complexities in these absentia trials and whether the STL will be a worthy institution that can deliver justice.

First day of the trial: OTP opening statement

Today the long-awaited trial against the suspects of the Rafik Hariri assassination of 14 February 2014 will start with the Prosecution's opening statement. The trial is expected to start at 9:30 am in Leidschendam, near The Hague.

The indictment against the four suspects can be found at the STL website.

The trial will be in absentia, in the absence of the accused persons, unique in international law:

"Uniquely in modern international law, the UN's Special Tribunal forLebanon (STL), housed in a former spy agency headquarters on the outskirts of The Hague, is trying the suspects in their absence because the Shia militia Hezbollah has vowed never to arrest them."

Source: The Guardian

Blog on the Special Tribunal for Lebanon

In this blog we will analyze and comment on the proceedings at the Special Tribunal for Lebanon. We are defense lawyers from the Netherlands, having worked as such for over ten years in both domestic and international criminal law.

For a short overview of the key organs of this Tribunal, you can read the following newspaper article: Leading Figures of the Special Tribunal for Lebanon, which provides some background on the structure of the Court.

For an overview of the defendants and the cases that are currently on trial, you can visit the STL's website and read the background on the cases.

This Thursday the trial is expected to start, so stay tuned!