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.