Continued Examination of Prosecution Investigator Gary Platt on Covert Phone Networks

In the last two days before the Tribunal’s judicial recess, the Prosecution finished its examination of Gary Platt while the Sabra Defense began with its cross-examination. Mr. Platt is a Prosecution investigator who the Trial Chamber designated as an expert witness in covert networks. Consult our previous post on this witness for further information on his qualifications and prior testimony.

[Screenshot of witness Gary Platt testifying before the STL on 26 July 2016]

On 26 July 2016, the Prosecution recommenced its examination of the witness after previously having discussed the setup, initialization, and recharging of the Red Network phones. The Prosecution began by attempting to establish the covert nature of the Red Network (among others) through the witness’s investigatory expertise. Mr. Platt testified that various elements point to the covert and criminal nature of the Red Network. For instance, no subscriber details were provided by the Network purchaser while false identification was supplied by the dealer. Furthermore, the lack of a financial trail led the investigator to conclude that every purchase associated with the phones (including the Network lines, handsets, and SIM cards) were paid for in cash. Additionally, no SMS messages were sent by Red phones, suggesting that the users took many precautions to ensure that their conversations were not recorded.

Mr. Platt testified that the nature of the Red Network’s activity further evidences its covert nature. He said that the phones made calls in a “cohesive and pattern and manner,” usually being switched off when not in use. Furthermore, the phones were not used after the day of the Hariri assassination, suggesting that they were of no use past that date and were only a liability to the covert operation. Approximately 88% of the Red phones’ calls were between other Red Network devices, the rest constituting service calls to Alfa and five misdials. Only three of the misdials were the fault of a Red phone user, thus suggesting that this was a closed network.

The Prosecution presented data uncovered by the witness his investigation that showed the duration of Red Networks calls. Excluding service calls and misdials, 80% of the calls lasted between zero and one minute while the longest did not surpass six minutes. The witness believes that this is another indication of the Network’s covertness as it is his experience that certain criminal enterprises often use telecommunication for short, information-sharing calls. Mr. Platt later stated that the chronology of these short calls further demonstrates that information was passed from one user to the next.

The Prosecution subsequently displayed a visual aid depicting the location of the Red Network calls. The Prosecution discovered that 83% of the calls occurred in the Beirut area, 12% in Zouq Mosbeh and Faraya, and 5% in Tripoli the area. This information is important for identifying Red network activities. Many of the calls occurred in areas around Parliament, Hariri’s residences, and the crime scene. Mr. Platt testified that it was typical for a terrorist cell’s final calls to be made from the crime scene right before the attack, as is the case with the Hariri assassination.

Afterward, the Prosecution expanded the scope of its examination to include the connectivity among all of the identified Networks. Mr. Platt testified that the networks demonstrated coordinated activity periods, and that each paid for their devices and lines in cash. He also said that the Blue and Yellow Networks shared top-up cards and handsets, and that they tended to top-up at the same time and location. Furthermore, the Blue and Green phones initialized in the same area, and the Yellow and Blue phones were present during the Red Network initialization.

Mr. Platt testified about the financing of these networks as well. He stated that approximately $6000 was spent to finance the Green Network, despite its limited usage. The Blue Network, for example, was left with $5000 of unclaimed credit. Similarly, the Red Network retained $500 of credit which was never recovered by a user. According to Mr. Platt, this suggests that the organization maintaining these networks was well-financed, which reveals a high level of coordination. Furthermore, the fact that no one sought to claim the substantial amount of credit that was left on these phones suggests that the users did not want to risk the secrecy of their operation.

Afterward, the Sabra Defense commenced its cross-examination of the witness. Mr. Mettraux’s line of questioning largely followed the same style as his recent cross-examination of Mr. Macleod, where the witness was asked to comment on non-evidentiary documents that were read to him. In the present case, the Sabra Defense accompanied this tactic with an alternate theory of the purpose of the Red Network. Though Mr. Mettraux agrees with the Prosecution in that the so-called Australian Pilgrims were not involved with the Hariri plot, he theorized that they were the targets of a setup by those who were. In a four-pronged approach, the Defense intends to show that 1) there was an effort to set up the Pilgrims, 2) the culprits attempted to tie the Red phones to the Hariri plot, 3) the culprits succeeded in identifying the Pilgrims as suspects, and 4) the Red network lines were allowed to be uncovered for the purpose of the setup. In response to a subsequent question by Judge Re, Mr. Mettraux stated that the Sabra Defence would provide explanations for the purposes of the other phone networks in due course.

Though Mr. Platt repeatedly insisted that he was not familiar with the case of the Australian pilgrims and that he had no knowledge of an investigation into a possible setup, the Sabra Defence continued to put documents to the witness for him to comment upon. Many of these sought to establish the movements of the Pilgrims, putting their place of residence in Lebanon at Minieh, near where the Red Network lines were activated. Furthermore, their residence was near several phone shops that were possible connected to the sale of the Red phones. However, the witness pointed out that it was impossible to trace the ultimate sale of the handsets. Furthermore, Mr. Platt noted that even though the Red phones may have activated the Minieh cell site, this does not mean they were near the Pilgrims’ residence or the phone shops. This is because rural cell sites tend to have a wider coverage.

Additionally, the Defense inquired as to why the assassins purchased a van whose steering wheel was located on the right-hand side of the vehicle, as is the custom in countries such as Australia, rather than the left-hand side (as is typical of Lebanon). The witness could not answer, but Mr. Mettraux suggested that this was another effort to pin the blame on the Pilgrims.

On 27 July, the Sabra Defense recommenced its cross-examination by proposing the theory that the true assassins provided the Red phones to third-parties, tasking them to follow Hariri’s whereabouts and make phone calls amongst each other. This supposedly explains the handset swapping acknowledged by the Prosecution and the lack of nighttime calls.

The rest of the cross-examination largely sought to implicate Lebanese government officials with ties to Syria. By putting further documents to the witness, the Defense sought to establish that the Sûrete Général of Lebanon had access to the Pilgrims’ entry/exit records. Having attempted to show that certain actors within the government had access to the Pilgrims’ whereabouts, the Defence questioned Mr. Platt about how the Red network was originally uncovered. The witness responded that they were discovered by Ghassan Toufaili, the head of the technical department of the Lebanese military intelligence unit. Mr. Mettraux suggested that it was unbelievable that Toufaili could have uncovered this network in merely six weeks’ time. The witness admitted that the Prosecution replicated Toufaili’s investigation using computer software and that they never received evidence of the Lebanese official’s handiwork. The Defense then questioned the witness about the relationship between Toufaili and Rustom Ghazaleh, the head of Syrian military intelligence in Lebanon at the time. The two were said to be close friends.

The witness pointed out several oddities within Mr. Mettraux’s working hypothesis. For instance, the Defense was forced to admit that the Pilgrims were in Saudi Arabia during the time of the Red network’s activation. Mr. Platt further observed that if the Lebanese had “infinite access to this [travel] information,” then the assassins would not have chosen individuals who were not in the country. Additionally, it is unclear to the witness how the assassins could have coordinated the bombing location such that it perfectly coincided with the Pilgrims’ departure.

Another odd aspect of this cross-examination is the Defense claim that it is the practice of these groups to blame Sunnis tied to jihadist groups for their attacks. The only example the Defense draws upon for this assertion is the unusual disapperance of Ahmad Abu Adass. Further, by the Defense’s own admission, the Australian Pilgrims bear no responsibility for any terrorist activities. As in the Macleod cross-examination, implicated individuals are cast as “jihadists,” which seem to be very charged terms to use on such tenuous footing.

Continued Examination of Technical Witness PRH707 (Alfa)

On 25 July 2016, the Trial Chamber continued to hear testimony from confidential witness PRH707, an employee of the Alfa telecommunications company. For further information on this witness, refer to our March 21 and June 13 blog posts.

Mr. Courcelle-Labrousse, representing the interests of accused Oneissi, questioned the witness on very technical matters related to network coverage and cell station configuration. The Defense’s main concern stemmed from perceived inconsistencies between the lists of cell site azimuth (tilt) values provided by Alfa in 2007 and 2010. The witness repeatedly insisted that it is not unusual for azimuth values to be changed over time. However, these lists were theoretically meant to detail the values that corresponded to February 2005. The witness then surmised, but could not confirm, that the OTP phrased its respective requests for assistance (RFA) in 2007 and 2010 such that the requests did not actually ask for the values for February 2005. This explanation would account for both the inconsistent azimuth values and the cell sites missing from the 2007 list. When questioned by Judge Braidy on whether the missing sites were relevant to the calls allegedly made on the day of Hariri’s assassination, the Defense stated that its aim was to prove that Alfa simply could not confirm important technical details going to the attribution of the accused’s cell phone.

The witness also noted that a difference in azimuth values of 10-15 degrees is not significant. The Defense pointed out greater differences between Security Main and Cell ID logs, but the witness could not put that discrepancy into perspective without being provided the timeframe of the cells’ operation.

The Defense further questioned the witness about the cell sites’ power supply in the event that Électricité du Liban, the Lebanese national energy company, experiences an outage. The witness testified that the sites are equipped with battery power that allows them to transition to generator usage without service interruption.

The witness then clarified certain terms and processes related to MSC capacity and network congestion. He stated that the network would have been at capacity on the day of Hariri’s assassination, and that this may have prevented redirect retries (cell site handovers) from succeeding. In short, it would have been very difficult to place a call in the Beirut area at that time, especially near the PHOENICIA and PALM BEACH cell stations.

Mr. Courcelle-Labrousse further inquired about processes that may inhibit cell signal. For instance, “fast fading” occurs when a physical obstruction interferes with the signal, whereas “Doppler fading” occurs when the caller is continuously moving, resulting in a  site handover to a  cell that would not normally correspond to the user’s geographical location.

The Defense then asked the witness about the inaccuracies of a predicted coverage map for the Beirut area in February 2005. Counsel noted that one station on the map did not exist in February, but was constructed later in the year. The witness believed that the RFA did not specify the month the OTP desired to capture, so Alfa included all cell stations for that year. This change could affect the predicted coverage area but regardless, the witness estimated that 20-30% of the map could be inaccurate.

On re-examination by the Prosecution the witness was asked to clarify the labeling of the coverage map, but could not provide an answer. He was further asked about the process through which the azimuth value lists were requested, and the witness repeated his belief that the two documents display data for separate years. Lastly, the witness confirmed for the Prosecution that a call data record being registered in spite of congestion is indicative of cell site functionality.

Continued Examination of Technical Witness PRH705 (Touch)

The Prosecution resumed its examination of witness PRH705, an employee of Touch, followed by cross-examination from the Ayyash Defense (transcripts of 19-21 July). Much of the witness’s testimony refers to documents that were disclosed only to the parties, compounding the difficulty of following the technical line of questioning. Refer to our previous post for details on the beginning of this witness’s testimony.

On 19 July 2016, the Prosecution took the opportunity to summarize the thematic content of PRH705’s testimony up to that point. The witness had previously provided information on the services offered by Touch, the organization of the company, the subscriber database, call data and SMS records, network operations, and cell site materials, as well as other technical and corporate matters. 

The subsequent day, the Prosecution first asked for exhibit numbers for university records of the accused, which will be used to establish a relationship between a third party (through their phone number) and the accused. The Prosecution did the same for entry/exit, banking, medical, and civil records pertaining to Ayyash, Oneissi, Badreddine (aka Issa), Merhi, and Sabra, as well as their family members.

The Prosecution then requested witness PRH705 to confirm paragraphs of his statements, including the amendments provided by Touch. Most of the content of these statements is not immediately known, but they concern to the topics mentioned above. The Prosecution further clarified technical terminology, Touch’s billing practices, and third-party provisioning of SIM cards. Judge Akoum sought explanation of the differences between personal and commercial post-paid accounts.

Mr. Hannis for the Ayyash Defense subsequently began his cross-examination of the witness. The Defense began by inquiring about the organizational structure of Touch’s various departments, including the Legal and Government Affairs departments, and how they handle requests for assistance. The witness further testified about the creation of a quality control unit within Touch’s Technical Department, in addition to the process of logging changes to cell site configurations. This questioning indicated that the Defense may later submit that during 2004 and 2005, Touch did not adequately record modifications that could affect cell phone attribution.

Most notably for this day, the Defense asked the witness about various technical errors that might lead to inaccurate call data records. For instance, the witness testified that certain cell sites may produce overlapping coverage that can “overshoot” the location of the caller. PRH705 stated that the “propagation model” used by the company produced inaccurate locations 20% of the time. 

The second day of the Ayyash team’s questioning, on 21 July, revealed potential arguments against the Prosecution’s use of call data records to prove its case. The witness was questioned about the frequencies at which Touch transmitted cell signals between 2004 and 2005. Witness PRH705 testified that “frequency hopping” (whereby the cell site used to transmit a call is changed) occurs when the network becomes congested, the user is located on the border of two adjacent sites’ coverage areas, or a physical obstruction interferes with the signal. The Defense intimated that this may obscure the location of the caller, thus inhibiting cell phone attribution.

The witness testified that further instances of such “normal handover” may occur when the caller is moving and comes within range of a different cell site. After the Defense questioned the witness about the call logs that Touch stored between 2004 and 2005, the witness testified that Touch did not store end cell data at that time. Thus, a user’s location would have been recorded at the start of their call, but if they had moved by the time they disconnected, this would not be reflected in Touch’s logs.

Witness PRH705 also stated that it may not be possible to recreate actual coverage predictions for each cell site from 2004 to 2005 because these “snapshots” require certain data inputs that may not be available. Even if they could be generated, the witness said that they still may contain inaccuracies. Furthermore, the witness testified that to his knowledge, the propagation model used to generate the best predicted coverage sites could have been generated any time between 1997 and 2004. It is unclear from his evidence whether the witness was referring to one model used for the entire country or multiple models used for individual cell sites.

The witness additionally confirmed that Touch used relatively less accurate GPS devices between 2004 and 2005 compared to today. On another note, the witness said that he was not sure if “azimuth values” were stored during the same period. These inputs affect cell sites’ coverage and, therefore, their ability to locate callers’ positions. Moreover, PRH705 testified that Touch’s “mobile switching centers” were configured manually such that they did not all register call times in a synchronized fashion. The witness said these inaccuracies could range from a few seconds to ten minutes. Though the witness said that these discrepancies can be discovered, he admitted that they may be misleading.

In another matter on 19 July, members of the Prosecution read onto the record three summaries of separate witness statements that were previously admitted into evidence. The first witness, Timothy Holford, was a Prosecution investigator who stated that he undertook a GPS mission near the office of the Lebanese Ministry of Telecommunications to verify its location. This is where the telecarte used to make the false claim of responsibility to Al Jazeera was allegedly sold. The second witness statement pertains to Elvis Stana, who is an information management analyst with the Prosecution. Mr. Stana had performed a statistical analysis in order to evaluate the level of synchronization or variation among the clocks within various Beirut cell towers, which were used to record call times. This data is, of course, relevant to the call sequence tables that are used by the Prosecution to establish the activity of the colored networks. The third witness, PRH696, claimed in his statement that the text message that he sent in January 2005 from his phone to one of the phones in the red network (used by Mr. Ayyash), was sent by accident. This supports the Prosecution's theory that the red network was closed and covert.

On 21 July, the Prosecution requested several documents be marked for identification, including subscriber records that will be used to attribute various cell phone numbers to the deceased Badreddine. The Prosecution also provided summaries of two more witness statements admitted as evidence. Both statements were made by PRH045, a Lebanese journalist who personally provided political updates to Rafiq Hariri. The witness served as a liaison between the former prime minister and many political groups, including Hezbollah. PRH045 thus provided information on the political context of Hariri's assassination. Furthermore, Hariri had told this witness that Syrian president Bashar al-Assad had threatened Hariri, saying that if he did not approve the extension of Lahoud's presidency, Assad would "break the country over his head." The witness conveyed several ways in which Hezbollah would have benefited from Hariri's assassination, including the resulting void in Sunni leadership.

Continued Cross-Examination of Prosecution investigator Alasdair Macleod

The Trial Chamber continued to hear the testimony of Alasdair Macleod, a former investigator for the United Nations International Independent Investigation Commission (UNIIIC). The witness’s testimony was interrupted by the death of former accused Mustafa Badreddine, but recommenced on 13 July 2016. The cross-examination by counsel for Assad Sabra, Mr. Mettraux, and the re-examination by Mr. Milne for the Prosecution, spanned the course of seven days. Mr. Macleod was tasked with the investigation of the disappearance of Ahmad Abu Adass, the person who claimed responsibility for the bomb attack through a video message. Consequently, Mr. Mettraux’s examination concentrated on exposing flaws and alternate theories with respect to this investigation. The proceedings were often difficult to follow due to the use of private sessions, as well as the scope of the Defense’s line of questioning. For further information on the witness, consult our blog post on his previous testimony.

Mr. Mettraux’s cross-examination largely consisted of putting documents to Mr. Macleod and asking him to acknowledge their contents or clarify their relevance to aspects of the Abu Adass investigation. The Sabra Defense insisted that it did not seek to rely on the veracity of most of these documents, but rather their mere existence (the difference was disputed by the Prosecution). There were few instances in which Mr. Macleod was in a position to respond in detail to Mr. Mettraux’s questions, if he could confirm any relevant details at all. The witness often maintained that he was not involved with the aspects of the case to which the Defense referred.

13 July 2016

The Defense began its cross-examination by inquiring as to whether Mr. Macleod had any knowledge of a “story” relating to a person named “Mohammed” being “rewashed, reorganized, and reshaped to explain the departure of Mr. Abu Adass (...)”. Mr. Mettraux pointed to various witness statements that suggest that the story of an orphaned Christian convert to Sunni Islam emerged first in September 2004 and again in January 2005 when the UNIIIC adopted it. The original story is attributed to statements made by Taha Kanawati, an acquaintance of Abu Adass, which could potentially be corroborated by a neighbor of Abu Adass. The Sabra Defense presented a considerable number of UNIIIC witness statements to Mr. Macleod in order to inquire as to the relationships between Abu Adass, Hussam Mohsen, and Khaled Taha. The documents presented to Mr. Macleod suggested that Mohsen and Taha were tied by their fundamentalist views, thus implying that Abu Adass harbored these beliefs by extension.

Mr. Mettraux referred to the testimony of Mohammed Al-Bishti before a Lebanese investigative judge in which Bishti recounted the story of a grocer named Ahmad Freijeh. Freijeh allegedly witnessed the suspicious behavior of two individuals occupying a neighboring home. One, he said, was named Mohammed. According to his testimony before the investigative judge, Bishti recalled that Mohsen had told him that a man named Mohammed had taken Abu Adass to an unknown location immediately before his disappearance. It was alleged that the Lebanese authorities were able to track down this “Mohammed,” but Mr. Macleod had no knowledge of this. The Defense later put documents to witness that suggested that this Mohammed’s real name was Ibrahim Sbaneck, an individual who was under investigation by Lebanese authorities. Mr. Macleod had no recollection of this.

Counsel for Sabra further inquired into the movements of Khaled Taha around the date of the Hariri assassination. He referred to a UNIIIC report that put forward that Taha had returned to Lebanon from Syria the day before Abu Adass’s disappearance and left for Syria the day after. To the witness’s knowledge, UNIIIC investigated a possible connection but could not find one and that UNIIIC had eliminated the possibility that Taha had picked up Abu Adass (but could not recall how this determination was reached). The Defense then asked Mr. Macleod about his meetings with Syrian officials. Mr. Mettraux asked the witness whether these officials had labeled Taha as a “jihadist” with links to Al-Qaeda. Mr. Macleod responded that as far as he could recall, Taha was “involved in efforts to support the insurrection or the organizations in Iraq that were fighting the Americans.”

14 July 2016

After Mr. Macleod clarified that he stopped working on the Abu Adass investigation in late 2007 or early 2008, counsel for Sabra further inquired into Abu Adass and Taha’s possible affiliations with Al-Qaeda. One UNIIIC witness thought that the two may have carried out minor logistical functions within the organization while another suspected that Taha was involved with transporting fighters across the border to Syria. Mr. Macleod did not recall being provided this information and did not agree with the Defense’s characterization of Abu Adass’s increased religiosity as “radicalization.”

Another witness statement indicated that Abu Adass had said that he was leaving with Taha on the date of his disappearance and that Taha later called the Abu Adass household to mislead the family as to his whereabouts. Mr. Macleod had limited knowledge of this. The Defense also asked about any investigation into Bilal Zaaroura, a close associate of Taha’s who was known to use the public phone that called the Abu Adass household, but the witness could not recall the details of this aspect.

Of the many overlapping characteristics of Taha and “Mohammed’s” respective stories that were presented by the Defense, Mr. Macleod could only acknowledge that they shared a dislike of mobile phones, that they attended the Arab University mosque during separate time periods, and that Mohammed did call the Abu Adass home on 15 January while Taha may have made a call on the same date.

15 July 2016

The Sabra Defense’s cross-examination was structured around four points. First, Mr. Mettraux questioned Mr. Macleod about the movements of Khaled Taha’s family. According to a UNIIIC investigation, Khaled Taha’s mother left Lebanon with a son (not Khaled) and crossed into Syria on the day of the Hariri assassination. The witness had no knowledge of this and did not know of any investigation into this matter. The second point focused on the possibility that Taha’s movements into Syria were illegally facilitated.

The third area of the Defense’s cross-examination touched upon the selecting of Abu Adass for the video in which he claimed responsibility for the Hariri assassination. Mr. Mettraux presented an investigator’s note from the Prosecution that claims that the Syrian Military Intelligence (SMI) was monitoring the Hariri convoy in late 2002 or early 2003 through “Palestinian jihadists.” Though the witness had no knowledge of this information, he could confirm that both Abu Adass and Taha are Palestinians. After presenting more statements that suggested Syrian involvement, the Defense asked whether the witness was aware of an apparent “modus operandi of the SMI to use Palestinian jihadists to carry out jobs for them.” Again, Mr. Macleod was not aware of this information.

Additionally, Mr. Mettraux presented various witness statements that suggested Abu Adass and his family could have been targeted by the Al-Ahbash organization due to their religious disagreements. The Defense further speculated that an enmity may have developed after a cousin of Abu Adass was associated with the assassination of Al-Ahbash’s former leader. Mr. Mettraux further suggested that a fax sent by the organization to the Lebanese authorities laying blame for the Hariri assassination demonstrated intent to assign blame on Abu Adass. With the help of Khaled Taha, the Defense proposed that Al-Ahbash selected Abu Adass for the post-assassination video, that Taha lured him into the operation under false pretenses, and that Al-Ahbash attempted to point the finger at Abu Adass. While the witness was aware of certain aspects of this claim, he could not recall any investigation into this claim (which he viewed with skepticism).

18 July 2016

Mr. Mettraux’s final line of questioning from the previous session involved the Defense’s theory that the failed plot to bomb the Italian embassy in Beirut was in fact the first attempt on former Prime Minister Hariri’s life. According to the Defense, the truck bomb that was to be used in the embassy bore similarities to the one used in the Hariri killing. Furthermore, the Italian embassy may have been on the path to Parliament that Hariri’s convoy would have taken. The Defense presented possible connections between Abu Adass and those involved with the plot, but the witness was not aware of any connection between the embassy plot and Hariri’s assassination.

Counsel for Sabra also pointed to documents that the evidence that allowed the Prosecution to tie certain phone numbers to the accused in the Ayyash case originated from the SMI. Mr. Macleod admitted that he never saw the software that was supposedly used to obtain this information, and that he could not confirm its existence. The Mr. Macleod acknowledged that he was told that the paperwork surrounding this “breakthrough” was “destroyed,” and that the provenance of these attributed phone records could not be explained at the time.

Counsel for Oneissi cross-examined this witness in private session.

19 July 2016

The Prosecution spent half of the day re-examining Mr. Macleod in order to clarify various points. Mr. Macleod testified that he considered many statements upon which the Defense relied to be hearsay, including those which alluded to two calls to the Abu Adass household. He further characterized the two “stories” referenced by the Defense as a “mistaken conflation” of two accounts rather than a “shocking and sudden revelation of something previously hidden.”

The witness testified that although UNIIIC considered the possibility of Taha’s involvement in the Hariri assassination, no evidence was found to support the theory. In one interview conducted by Mr. Macleod, an acquaintance of Taha’s said that he seemed “surprised” and “upset” by Abu Adass’s disappearance, even showing tears in his eyes. Another witness had told Mr. Macleod that Taha was “gobsmacked” by his disappearance and that Taha had never recommended Abu Adass for operations of the “committee” (which refers to a group of militants). Taha himself was described as “bewildered” by the purpose of targeting Prime Minister Hariri. The Prosecution thus suggested that neither Ahmad Abu Adass nor Khaled Taha were likely to have taken part in the assassination.

Other Matters
On 15 June 2016, before Mr. Macleod took the stand, the Prosecution sought to formally admit evidence that the Trial Chamber had previously ruled admissible. These include subscriber notes from Alfa. The prosecution submitted various annexes, including 86 total pieces of evidence, relating to the details of the accused. These notes include the subscriber name, phone number, activation date, switch-off date, and call time. The Prosecution intends to use this information, in conjunction with civil records, to attribute phone numbers to the accused.

The Death of Badreddine (Part 2): The Trial Chamber's Decision to Continue the Proceedings

Submissions on potential consequences of Chamber's findings (1 June 2016)

Before issuing its decision on the personal status of Mustafa Badreddine, the Trial Chamber heard submissions from the parties on the potential consequences of its findings. The transcript may be found here.

The Prosecution submitted that is unlikely that better evidence of the defendant’s death will emerge. Therefore, the Trial Chamber should decide to terminate the case against Badreddine. If so, the the Court should issue an amended indictment that preserves Badreddine’s name as a co-conspirator. The Victims' Representative stressed that the Court should not issue an order to terminate the proceedings without prejudice. In the Representative’s view, if new evidence of Badreddine’s whereabouts were to emerge, it would be in several years’ time. The Legal Representative cautioned the Tribunal to exercise due care in terminating the proceedings against Badreddine, as the result would likely require a complete retrial if he were found alive. The Representative concluded that the “balance of convenience (…) lies in favor of allowing the proceedings to continue on the basis that [the STL is] not currently satisfied that the evidence is sufficient to conclude that Mustafa Badreddine is dead (…) whilst further inquires are conducted (…).”  The Defense vehemently disagreed with the Prosecution’s suggestion to re-characterize Badreddine as a co-conspirator on an amended version of the indictment in the event that the Trial Chamber terminates the proceedings against him. Instead, the Defense argued that all mentions of Badreddine should be wiped from the indictment and any outstanding arrest warrants should be voided.

The Trial Chamber’s Written Reasons for the Interim Decision to Continue the Proceedings

On 1 June 2016, the Tribunal ruled that “it did not believe that sufficient evidence has yet been presented to convince it that the death of Mustafa Amine Badreddine had been proved to the requisite standard.” Judge Braidy issued a dissent.

The Trial Chamber stated that it could not find evidence of an applicable international standard but nevertheless extrapolated several guiding international legal principles that govern the termination of proceedings against a deceased defendant. These are (citations omitted):

• “Where a court is satisfied on the available evidence that an accused person is no longer alive, it should terminate the proceedings against that person (...)”;
• “The doctrine of individual criminal responsibility provides that criminal jurisdiction may only be exercised over living persons. A court's personal jurisdiction (...) is therefore exclusive to that particular accused and ceases upon his or her death (...)”;
• “Termination or discontinuance of the proceedings may be either final and absolute or conditional and 'without prejudice' to reopening, resuming or continuing the case in appropriate circumstances, should the accused be found to be alive (...)”;
• “As a general rule, a certificate of death certified or authenticated by the State where death occurred or another interested state, is desirable though not essential, for a court to be satisfied as to the death of an accused. There may be circumstances in which a death certificate in the appropriate form or from an official source is unavailable, difficult to secure or the obtaining of which would result in unreasonable delay. In these circumstances other evidence supporting a finding of death may be accepted (...)”;
• “A death certificate alone may not suffice in all the circumstances and a court may seek additional evidence in the form of, for example, a post-mortem, coroner's report, other forensic report or document verifying that an accused is dead. DNA analysis, identification of the body may also be required to establish that the body purported to be that of an accused person—in respect of which there has been a funeral service and an interment—is in fact the accused's.”

In its majority opinion, the Trial Chamber decided that the termination of the proceedings against the accused in an in absentia trial is “an extreme step” which requires a “high standard of proof.” Though the standard need not reach the level of “beyond reasonable doubt” the majority directly refrained from specifying the appropriate threshold. The Trial Chamber further declared that in certain circumstances, a death certificate may amount to necessary, but insufficient proof of a defendant’s personal status. If no death certificate is available, however, the majority decided that “any other evidence” may be examined in order to be persuaded of the accused’s death.

On the basis of the evidence presented by the Prosecution and Defense counsel, the Tribunal decided that it is not yet satisfied of Badreddine’s death. The circumstantial and conflicting nature of the evidence, including the ambiguous circumstances of Badreddine’s death, made the Tribunal to determine that the proceedings must continue in the interim. The Court highlighted its belief that “[n]ot all avenues to obtain official proof from the Lebanese or any other State authorities certifying the death of Mr Badreddine have yet been exhausted.” The majority stressed that this is an interim decision that may be revisited upon receipt of additional evidence.

Judge Braidy's Dissent

Judge Braidy dissented from the majority decision to continue the proceedings. Judge Braidy agreed with the majority’s assessment of “guiding legal principles” that govern the termination of proceedings against a defendant in the event of their death. She further agreed that a “high standard of proof” is necessary to be satisfied of a defendant’s death. The judge did dissent, however, with respect to the application of these principles to the case against Badreddine.

Judge Braidy found the Jerbo case particularly instructive in light of the parallels between the ICC and the STL’s capacity to procure an official death certificate. In the Jerbo case, the Court heard circumstantial evidence of the defendant’s death given its inability to obtain a death certificate. Judge Braidy noted that the Prosecution maintained that it possesses “no information on ‘when a death certificate might be issued; and, second, whether there is any reasonable expectation that such a certificate would be issued on the basis of any additional evidence beyond that which is presently available (…)’” Thus, Judge Braidy considered it appropriate to evaluate the circumstantial evidence presented to the STL rather than wait for an official death certificate. On the basis of this evidence, Judge Braidy concluded that she was satisfied of Badreddine’s death.

The Death of Badreddine (Part 1): Evidence and Legal Submissions

  

On 13 May 2016, the Press Office of the STL took note of Lebanese and international media reports on Mustafa Badreddine, one of five principal defendants on trial for the assassination of former Prime Minister Hariri. According to these reports, Badreddine died as a result of an “explosion” at a Hezbollah base of operations near the Damascus airport in Syria. Hezbollah has since attributed this attack to artillery fire from “takfiri” rebel groups. For various media accounts of Badreddine’s death, see articles from the BBC, Al Jazeera, Haaretz, and Reuters.

At the time of its first hearings on the matter, the Tribunal had not yet received an official certification of the defendant’s death and was forced to consider circumstantial evidence. Because the proceedings surrounding the death of Badreddine were extensive and multifaceted, these summaries and analyses will be divided in three parts. This first post will outline the evidence and legal submissions pertaining to Badreddine’s death that were presented by the parties on 31 May and 1 June 2016. The respective transcripts can be accessed here and here.

The Evidence of Mustafa Badreddine’s Death (31 May)

The Challenges of Certifying the Death of Mustafa Badreddine

The Prosecution began by highlighting two main obstacles to obtaining certification of Badreddine’s death. Firstly, Hezbollah appears to have assumed “exclusive jurisdiction and control over the investigation of Mr. Badreddine’s death in Syria, the transportation of his body to Lebanon, the organization of his funeral, and his internment [sic] in Hezbollah’s Martyr’s Shrine.” When pressed on this characterization of Hezbollah’s authority by Presiding Judge Re, the Prosecution clarified that it does not believe Hezbollah maintains absolute de jure control over Badreddine’s death. The Prosecution did claim, however, that Hezbollah normally enjoys concurrent jurisdiction with the Lebanese authorities over members of its military wing. Nevertheless, the Prosecution asserted that Hezbollah currently retains total de facto control over the investigation, thus precluding the exercise of concurrent jurisdiction with Lebanon. Therefore, the Lebanese authorities have not been able to provide the Court with the results of any independent investigation.

The second barrier noted by the Prosecution is rooted in Hezbollah’s express hostility toward the STL. The Prosecution considers cooperation from Hezbollah to be unlikely given that the organization does not recognize the Tribunal’s legitimacy. On the basis of these obstacles, the Prosecution submitted that it is impossible to know if or when an official certification of death will be made available to the STL. Thus, the Prosecution deemed it appropriate to provide an array of circumstantial evidence of Badreddine’s death.

Evidence of Death Presented by the Prosecution

The Prosecution structured the evidence it presented around ten main events relating to the circumstances of the defendant’s death.

The first and sixth events include reports of Badreddine’s death reported by the Lebanese media, originating from statements issued by Hezbollah and circulated to the press. The second event was a condolence ceremony held in the Mujtaba Complex, which is a space associated with Hezbollah that has been used for other condolence ceremonies in the past. The Prosecution suggested that Hezbollah would not fabricate Badreddine’s martyrdom while using a compound tied to distinguished military and religious figures. The third event involves the delivering of speeches from dignitaries such as the Deputy Secretary-General of Hezbollah, in the presence of Badreddine’s casket, althugh the STL has not received any confirmation that Badreddine’s body was enclosed in this coffin. Fourth and fifth on the list is the procession from the Mujtaba compound to the Martyr’s Cemetery. Seventh, the Iranian Ambassador to Lebanon and the Iranian Deputy Foreign Minister for Arab and African Affairs visited Badreddine’s grave, accompanied by his three brothers. Eighth, a well-attended ceremony was conducted in a Damascus mosque, featuring photographic displays of notable figures such as Ayatollah Khomeini and Ayatollah Khamenei. Additionally, Mustafa Badreddine’s son traveled to Syria for the occasion. The penultimate event relates to yet another ceremony conducted in Lebanon. This service is particularly notable because it featured a speech by the Secretary-General of Hezbollah, Hassan Nasrallah who extolled the virtues of Badreddine and his martyrdom. Additionally, the Secretary-General made a point of using Badreddine’s “given name” (Sayyed Mustafa) rather than his “jihadi code-name” (Sayyed Zuylfiqar), because the latter is abandoned post-martyrdom according to Hezbollah tradition. Nasrallah also spared a few words for the STL, declaring that the Tribunal “does not exist as far as we are concerned.” The final ceremony—held in Tehran on 24 May 2016—was attended by Badreddine’s son and Ayatollah Khamenei, the Iranian supreme leader. There is photographic evidence of the Ayatollah presenting Badreddine’s son with a ring. The prominence of this event suggests that the death of Badreddine was taken very seriously.

The Prosecution faced a critical line of questioning from the Trial Chamber with respect to the validity of the circumstantial evidence it presented. The Prosecution suggested that the precise circumstances of Badreddine’s death are unimportant in the opaque “military context,” especially since it is unlikely that Hezbollah will be forthcoming about the particulars of the event. Nevertheless, Judge Re pressed that every death must have a cause and that without one, no independent verification of Badreddine’s demise may be ascertained.

Evidence of Death Presented by the Defense

The Defense presented its own materials to the Trial Chamber to prove the death of its client. This evidence covered the familial, civil, and religious aspects of proving death. First, Badreddine’s family had issued a widely-circulated statement announcing his death. Second, the Defense pointed to the communiqué of Badreddine’s death that Hezbollah sent to the Lebanese media in an official capacity. Lastly, the Defense cited the declaration of Badreddine’s death by the Vice-President of the Shiite Islamic Superior Council, which his attorney described as “the highest Shiite Islamic [body].”

The Process of Obtaining a Death Certificate and Legal Submissions (31 May - 1 June)

On 31 May 2016, the Prosecution made legal submissions regarding the process of obtaining a death certificate for Mustafa Badreddine. Between 31 May and 1 June 2016, all parties put forth legal submissions as to how the Trial Chamber should evaluate evidence of Badreddine’s death under both international and Lebanese criminal procedure. The respective transcripts may be found here and here.

The Prosecution’s Submissions

The Prosecution justified its use of circumstantial evidence by citing the International Criminal Court’s decision to terminate pre-trial proceedings against Saleh Jerbo. The Prosecution believes this case offers instructive precedent because it demonstrates an instance in which an international tribunal terminated proceedings on the basis of circumstantial evidence of the defendant’s death. Further, the Prosecution emphasized the fact that the ICC terminated the Jerbo proceedings without prejudice so that the trial may recommence if the defendant were found to be alive. The Prosecution also instructed the Trial Chamber on the process of obtaining a death certificate pursuant to Lebanese law.

The Badreddine Defense Team’s Submissions

According to Badreddine’s legal representative Article 30 of the 1951 Lebanese Law applies. Therefore it is incumbent upon the appropriate mokhtar to issue the death certificate within 30 days of Badreddine’s death. On 11 July 2016, the Appeals Chamber intimated in its written decision that a death certificate of questionable probative value was indeed issued by the Lebanese authorities pursuant to this procedure on 6 June 2016. 

 

On 1 June 2016, Badreddine’s defense team expounded upon the religious aspect of obtaining a certification of death, as opposed to the civil side. The lead defense attorney submitted that the Lebanese state affords its religious communities the “exclusive right” to announce a death. “The civil side of the equation, he added, “is only an administrative formality.” According to the Defense, the repute of certain members of the clergy requires that the Trial Chamber assume the veracity of their statements.

The Legal Representative of Victims’s Submissions

Unlike his counterparts on the Prosecution and the Badreddine defense team, the Legal Representative of Victims was not sufficiently satisfied of Badreddine’s death so as to recommend the termination of the proceedings against him. Moreover, it is the unanimous opinion of the represented victims that the trial should continue until “proper, cogent, [and] formal proof” of Badreddine’s death emerges. Preferably, the STL would evaluate DNA evidence or witness identification of Badreddine’s body, which is said to be quite distinctive due to past injuries. The procurement of a death certificate, according to the Legal Representative, is only a “last resort” as he believes this document is only the “minimum” requirement for proof of death.

The Legal Representative substantiated this last claim by briefly pointing to precedent set by the International Criminal Tribunal for the Former Yugoslavia in the Bobetko, Talic, and Alilovic cases. He further cited jurisprudence from the ICC, including the proceedings against Raska Lukwiya, whose case was terminated only once DNA evidence confirmed a positive match while Okot Odhiambo was also disinterred and had his DNA tested. On the other hand, an arrest warrant for Vincent Otti is still outstanding despite “numerous reports of his death” because sufficient proof has yet to emerge. The most prominent of these precedents is that set by the case of Muammar Gaddafi, whose proceedings were not terminated until a death certificate was issued even though his graphic death was widely distributed on social and news media.

The Legal Representative indicated that it would premature to terminate the proceedings against Badreddine by providing three possible means of identification. Firstly, he noted that Badreddine is known to be a man of considerable wealth. The Legal Representative surmised that if he is indeed dead, someone in the Badreddine family would have an interest in requesting a death certificate in order to inherit these assets. Secondly, the Representative noted that Badreddine had spent time in a Kuwaiti prison before escaping in the chaos of the Iraqi invasion. It is possible that fingerprint or other biometric records associated with Badreddine’s detention could be obtained and used to verify his death upon exhumation of the body buried at the Martyr’s Cemetery. Lastly, the Legal Representative submitted that, if anything, an individual who knew Badreddine well could identify his body through his distinctive features. In sum, the Legal Representative of Victims asserted that the Trial Chamber has enough time and means to reach an informed decision as to the personal status of Mustafa Badreddine at a later date.

Examination of technical witness PRH705

Between 5 and 12 May, the next Prosecution witness came to testify: PRH705. This witness testified about the generation, storage, and maintenance of business records, specifically, call data records, cell site-related data, and the Touch subscriber database. This evidence will in turn be relied on by the Prosecution to attribute telephones to the accused. Like some of the previous witnesses, also the testimony of this witness was very technical and detailed.

Given that this witness needs protective measures, testifying under a pseudonym, parts of his testimony were conducted in private session in order to protect his identity. The witness is specialized in radio network planning and network optimization, and quickly the content of his testimony became quite technical, speaking of suppliers who may have access to make changes to the network and the details of the network and its specificities.

Within the company Touch, all requests for cooperation and information from third parties are processed by the governmental affairs unit, and the witness is extensively questioned about the internal process within the company.  At the relevant time, 2004-2005, the IT department was responsible for the call data record in the whole process of mediation, filtering and its billing. It is the commercial department that's responsible for the processing of the application forms of potential subscribers. The witness is questioned about the cell site data and possibilities for optimizing the network.

The witness was taken through his earlier statements and draft statements, but since only the parties to the proceedings have access to those statements, it is impossible for us to assess the precise content thereof. The ultimate statement that was signed by this witness was 73 pages in total. The initial statement had been prepared by someone else from his company, and he has not been able to verify all aspects thereof. The defence raised the fact that this situation is less than ideal, because the defence cannot cross-examine the witness on those issues that he does not have personal knowledge about, and they cannot cross-examine the witness's predecessor either.

Since the parties are still waiting for additional information from the authorities regarding this witness's testimony, the defence for Ayyash objected to proceeding with cross-examination; the defence for Badreddine wanted to start the cross-examination of this witness, but were unfortunately not available on that particular day, so the witness ended his testimony until the additional information concerning his testimony arrives at the court.

Continuation of evidence by representative of Lebanese company Alfa

PRH707 has been working at the Lebanese mobile network company Alfa since April 2012. He has been delegated as a representative witness of Alfa by the Minister of Telecommunications of Lebanon. He has already testified earlier this year (see our blog of 21 March 2016), and has returned to the STL for the continuation of his examination-in-chief and cross-examination (which took place on 18-22 April and 3-4 May). The telephone data provided by Alfa is used by the Prosecution to attribute certain telephone use, movement and communications to the accused, activities which the Prosecution links to the terrorist attack of 14 February 2005.

The witness answered some clarifying questions by the Prosecution, including questions about the complaint logs of Alfa for 2004 and 2005 (which have not been kept), the change in cell ID of stations destroyed because of the war (the cell ID has been changed sometimes, if the location of the station changed), and the options for invoice payment in 2004 and 2005. The witness acquired information by consulting his colleagues from various departments and teams within Alfa. The witness also testified about the origin, creation process and accuracy of a number of documents produced by Alfa.

Mr Young, counsel representing the interests of the accused Sabra, questioned the witness about, among others, a big central database that has been created in 2014 by Alfa, the impossibility to confirm most of the values provided for 2004 or 2005, and the driving tests done by the Alfa. Mr Young also pointed the witness to wrongly included or missing cell cites in the best server maps created by the Prosecution for 2005. According to the witness, these maps reflect the reality of the coverage for 2005 by 60-70%. Counsel also asked the witness about a directed re-try: the situation in which a call is connected to a neighbouring cell if the best serving cell is too busy. In this case, the call data record will not record the best serving cell.

Ms Dimitri, representing the interests of the accused Badreddine, questioned the witness about the manner in which he was interviewed by the Prosecution, as the Defence is seeking to obtain disclosure of investigator's notes, draft statements and lists of questions in relation to these interviews. During the examination of witness PRH707, the Defence did receive various additional e-mails from the Prosecution, although it is seeking for the disclosure of further material. Part of the cross-examination of Ms Dimitri was postponed to allow her to analyse the material that has been disclosed. This might lead to the need for the witness to return and answer some further questions by the Defence in the near future.

The examination of this witness covered many exceedingly technical issues, which were discussed at great length and through the use of a large set of documents. The purpose of the Defence is to show the inaccuracies, uncertainties and mistakes in the data, which would have consequences for the Prosecution's theory, which is built on this information. Mr Young explained that their team takes the position that most of the key cell site data for 2005 is completely unknown, and that the Prosecution is relying upon theoretical predictive coverage on the basis of doubtful (shape file) values. According to the Defence, the best server plots are a poor representation of both the actual coverage and the location of a phone user, and therefore cannot be used for the forensic purposes the Prosecution is using them.

Evidence on the telephone networks: Thematic summary and witness Gary Platt

Thematic summary

On 4 April 2016 the Trial Chamber decided, after hearing from the parties (with only two Defence teams opposing) that because of the factual and technical complexity of the trial, periodic in-court thematic summaries of evidence will be held. This seems to be an advantage for the Prosecution, which has to present an active case and now has been given the opportunity to stress its interpretation of the evidence or add further detail and interpretation. Furthermore, one wonders whether it would have been preferable to have a lengthier indictment or Pre-Trial Brief or more detail in the bar table motions when requesting the admission of specific evidence instead of using additional court time, especially in light of the trial's length thus far.

The Prosecution provided an overview of the documentary and witness evidence in relation to the interconnected red, blue, green and yellow telephone networks. The Prosecution explained their theory as to which telephones from which networks belong to which accused, when the SIM cards were (de)activated, their user information, and their recharge information as well as handset acquisition and history. For example, all telephones from the yellow network were charged from sequential top-up cards, therefore showing their interconnection. Three phones operated as a closed circuit within the green network which, in total, consisted of 18 devices. These three phones operated from 13 October 2004 until 14 February 2005 (the day of Hariri's assassination) and belonged to the accused Merhi, Ayyash and Badreddine, according to the Prosecution's theory. Further, all eighteen phones of the green network were purchased with fraudulent IDs, activated as a group and deactivated because of lack of payment on 23 August 2005. The red network sim cards were all bought on 24 December, which is shown by the range of the bar codes. These were credited on one occasion only and the registered subscribers deny having bought these sim cards.

Witness Gary Platt (4-6, 14-15 April 2016)

After this summary of the Prosecution's evidence on the telephone networks, Prosecution investigator Gary Platt was heard as a witness in court. He was tasked by the Prosecution with organising the telecommunication evidence and putting it into evidentiary format. The questioning on 4 and 5 April dealt with the question of whether he is qualified as an expert in the field of telecommunications evidence and surveillance. The Defence challenged his expert qualifications, taking the position that he's an investigator and not an expert, and not impartial and objective as he is a member of the Prosecution. The Trial Chamber however declared Mr Platt an expert in two areas: the surveillance of criminal networks and the identification and organisation of covert communications networks.

[screenshot of witness Gary Platt testifying before the STL on 6 April 2016]

Mr Platt has been involved in telephone analysis during his work for the police in the United Kingdom. His work included monitoring individuals through cell site data for intelligence and police investigative purposes. He would use information coming from the telephone service providers. Mr Platt's police work involved dealing with the telephone evidence in the London transit bombings in 2005. He has been trained as a handset examiner and has experience in the field of (covert) surveillance. Mr Platt has given evidence in over forty criminal trials in the United Kingdom.

Mr Platt prepared five 'indictment reports' for the STL Prosecution. In these reports he used collected call data records, cell site evidence, subscriber details, customer notes, customer contracts, financial information (payment and top up records), and witness statements. Mr Platt also prepared a report on the functioning of the telephone networks in relation to the assassination of Hariri and a 'network analysis report', whose analysis is the topic of his current testimony in court.

The witness gave evidence on the level of covertness of the various phone networks allegedly used by the accused (red, green, yellow and blue). This covertness varies from no subscriber details to subscribers who knew nothing about the phone. He also explained the elements of organisation of the phone networks, including the financing, the setup and the cessation of the network, the areas in which the phones operated, and the level of call and SMS activity between the the network phones and with third parties, if any. The witness gave his thoughts about phone patterns typical for criminals, which according to him includes short duration of phone calls, switching off phones, and payment in cash. He also tried to explain why some of the phones of the green and blue network were used after the terrorist attack on 14 February 2005, including the possibility that these phones were used for another criminal purpose, and that they were considered to be covert enough to continue their usage. According to the witness, the patterns in usage, location, crediting, etc show the organisational structure of the four phone networks.

The evidence of this witness will be continued in the near future.

January & February at the STL: Prosecution investigator Macleod and a representative of Alfa

Alasdair Macleod (12-14 January 2016)

Mr Macleod is an investigator for the Prosecution, who has previously worked for UNIIIC, the ICTY and the British government. The witness is called to court at the request of the Defence to be examined about his investigative work, including interviewing witnesses and taking statements. More specifically, the witness is questioned about the statements he took in relation to Abu Adass (the person who made the false claim of responsibility), the delivery of the video with the claim of responsibility to Al-Jazeera, and the Al Qaeda 13 group. The witness was tasked with finding evidence on what happened with Abu Adass. The Defence for Mr Sabra asked the witness about these investigations, which again led to discussions about the relevance of the witness confirming the content of statements given by other persons (see also the cross-examination of Ms Kamei, discussed in our previous blog).

Further, most of the cross-examination of this witness remains unknown or impossible to follow, as a large part of his evidence is in closed session, and in open session the names of the persons about whom the witness was questioned, were not revealed to the public. The Defence for Mr Sabra asked the witness to comment on his investigation work in relation to certain persons and information that seem relevant for the Defence case, for example their alternative theories on Abu Adass’ role. The cross-examination of this witness is still to be continued.

[screenshot of hearing at the STL - 28 October 2015]

Closed session

On 20-22 and 26-29 January the Court heard the evidence of a witness in closed session.

PRH707 (29 January, 9-12, 15-18 February 2016)

The evidence of PRH707 was heard in open session, although the witness’ identity was kept away from the public. PRH707 is an electrical engineer and has worked in telecommunication for about 25 years. The witness has worked at the Lebanese mobile network company Alfa since April 2012. He has been delegated as a representative witness of Alfa by the Minister of Telecommunications of Lebanon. Alfa is a company that manages the mobile phone network owned by the Lebanese state. At Alfa the witness deals with corporate reporting and the technical systems. 

PRH707 gave evidence about three types of records generated by Alfa in the ordinary course of business: call data records, cell site-related data and the database holding customer information (the so-called "subscriber database"). The Prosecution relies on these records to link certain telephones to the accused. A discussion was held in court if part of the witness' written statement could be tendered into evidence - in addition to the evidence he will give in court - with the Defence objecting to this. The Chamber still has to decide on this matter, but the amount of discussion shows that this is an important witness to the parties, with the telecommunication evidence constituting the core of the Prosecution's case. The witness explained that in order to create his statement, he consulted people from other departments within his company. These requests included confirming certain business records and procedures.

The unit in charge of the subscriber database does not fall under the authority of the witness and therefore he cannot say anything about its accuracy. The witness explained that two years ago they set up a new system to ensure that the database of subscribers is more reliable than it used to be. Identification papers, a photograph and personal collection of the card are now required to obtain a SIM card. The information in the subscriber database is for example used by the Alfa call centre dealing with customer complaints. The witness explained the procedure at Alfa in relation to the sale, activation, payment and recharging of pre-paid and post-paid SIM cards.

PRH707 further explained that the call data records were created for the billing system. Alfa only used the fields useful for this billing system, although other fields could be interesting for marketing for example. The witness explained the functioning of the data warehouse system, which is used to store information used for statistical or marketing purposes. This is the one of the three sources of call data records, in addition to the raw records themselves (with the main source being the switching centres, which create a call data record for each event passing through) and the billing system.

The cell site-related data is used by the team that is dealing with the coverage of specific areas (the radio team). The witness gave evidence about how new stations or new sites can be built to extend or improve the coverage. Various values were manually measured after the installation of the station, including the value of the azimuth, or the direction of the antenna. Customer complaints or the construction of additional stations occasionally required the modification of these antennae. The recorded values for 2004 and 2005 cannot be double-checked by Alfa.

About the functioning of the Alfa network, PRH707 explained that in principle a mobile phone will connect with the best serving cell or signal, although a low percentage of handsets will connect to another signal, causing complaints about the quality of the sound. Normally the best serving cell would be the closest geographically, although for example buildings blocking the signal or the station's limited capacity will create exceptions. Alfa used a software program called Aircom Asset to create maps showing the strength of the signal and maps showing the best serving cell for a certain location, the so-called shape files. These shape files were created using different models predicting the coverage. PRH707 and his colleagues have prepared a diagram of the structure of the Alfa network in 2004-2005. The witness testified about the functioning of this network. 

The witness further gave evidence about how the company dealt with the requests for data and records by the Tribunal. PRH707  commented on many of the documents provided by Alfa to the Tribunal, confirming their authenticity and explaining their content and origin. This includes documents about telephones that were part of the blue, green, yellow and red networks used by the accused according to the Prosecution.

The examination-in-chief by the Prosecution of this witness took more than two weeks (although there was quite some repetitive evidence). The cross-examination of PRH707 has been postponed, but, in view of the importance of this evidence, will be expected to take very long as well.

Witnesses testify about accused Mr Badreddine

Background of Mr Badreddine

This blog post analyses the evidence that was brought forward by the Prosecution over the last few months specifically in relation to the accused Mustafa Amine Badreddine.

(Picture of accused Badreddine from STL official website) 

The Indictment (para. 3 under a) specifies that "BADREDDINE monitored and, together with AYYASH, coordinated: (i) the surveillance of HARIRI in preparation for the attack; and (ii) the purchase of the van which was used to perpetrate the attack. BADREDDINE monitored the physical perpetration of the attack. In addition, BADREDDINE monitored and, together with MERHI, coordinated the preparation of the false claim of responsibility."

In November and December, the Prosecution called several witnesses to testify about the role that Badreddine allegedly played in the attack on former Lebanese Prime Minister Rafik Hariri on 14 February 2005.

Witness Nicole Blanch (19 November, 16 December 2015)

Ms Blanch works as an associate analyst within the Prosecution section of the Lebanon Tribunal. Her witness statement is provided an MFI exhibit number, but since no summary of that was read onto the record, it was difficult to follow her narrative in the courtroom.

She was tasked to review the SMS content for a phone attributed to the accused Badreddine (a telephone called PMP 663). She located a number of SMS messages between Badreddine's phone and  a phone number ending with 432, addressed as 'Jad'. These messages concerned refueling of vehicles and meeting at particular times and places, with Jad using the term 'boss'.

The witness prepared a document about this for demonstrative purposes in court, and also a sheet with the phone contacts between these two numbers. This sheet shows that there is frequent but short contact between these phones, and that there is the shared phone number of witness PRH416 (who has still to appear as a witness in court). Further, on 21 January 2005, the phones attributed to Mr Badreddine and Jad were in the Jounieh area back to Beirut; this corroborates the evidence of PRH416. According to the witness, this shows that "Jad was present with Sami Issa in Jounieh, and this was part of his role as a bodyguard for Sami Issa," and that Jad was responsible for the vehicles.

The witness is cross-examined by Mr Edwards representing the accused Mr Badreddine, who challenged the witness's evidence, suggesting that she made a selection of SMS messages that was most persuasive to her purposes (to show that Jad was a driver for Mr Badreddine, and that these SMS messages support the evidence of PRH416) and that a lot of different conclusions--at least different from hers--can be drawn from the SMS content. He thus suggested the possibility of an alternative theory or theories to the Prosecution's theory.

PRH416 (1-4 and 7 December)

Witness PRH416 was an employee of someone he knew as Sami Issa, a proprietor of a jewelry store part of a company called Samino. According to the Prosecution, Sami Issa is the same person as the accused Badreddine. The Defence challenges this theory. The witness was a security guard in one of the jewelry shops owned by Issa in the summer of 2002, and then worked as a bodyguard for Sami Issa  from fall 2002 until late January 2005. 

The witness identifies the phone number of Mr Issa and various of his employees and bodyguards, and he identifies manager Chaker and Mr Issa on photos. Mr Issa had a team of four bodyguards who carried weapons, and together they would be in one car with very tinted glass and Mr Issa in another car with no or lightly tinted glass. The witness thinks Mr Issa had another team of bodyguards. Generally, the witness's team would work from 2pm until midnight, and would receive a phone call as to where to meet with Mr Issa and where to pick up a car. Cars were picked up and dropped off at parking lots. They always dropped off Mr Issa at highways or main roads. The witness went with Mr Issa to restaurants and bars in Beirut. They were instructed to prevent anybody of taking pictures of Mr Issa.  The witness does not know why Mr Issa needed bodyguards; he did not carry around jewelry or cash. The witness further comments on a number of phone records between Mr Issa and him between 24 and 26 September 2014, when they used to frequent the Jounieh area in Beirut, and describes various other locations he accompanied Mr Issa to. 

Mr Issa had a briefcase with several mobile phones. At one particular moment, the witness saw him carry five phones. Mr Issa made sure he never left finger prints, e.g. he would use a cloth to touch a handset in a shop, and would pick up his cutlery with tissues or clean his cutlery after usage. He would often wear a baseball cap or sunglasses. Mr Issa had something in his right knee and used to limp. He was registered at a university in Beirut. He had various license plates for each of the cars he used, and would instruct the witness and his fellow bodyguards which plate to put on the vehicle. This included a license plate used by the intelligence directorate and a military license plate. Upon Mr Issa's instructions, the witness also made sure nobody followed him by taking circuitous routes, different routes, or park far away from his home.

A large part of this witness's testimony was conducted in closed session, and the content thereof was shielded from the audience.

During cross-examination the witness agreed with the suggestion by counsel for Mr Badreddine that the security measures taken by Mr Issa would be quite normal and reasonable for a successful jeweler, in view of the risks of robbery and kidnapping. The witness was also questioned about his phone calls with Mr Issa in 2006 and 2007, that is, after he had left his job. He was questioned about a text message he had received from Mr Issa, stating 'today is off'. The witness denied being reemployed by Mr Issa after January 2005, although later on during cross-examination he did admit that he did some more work for Mr Issa in 2007 as a bodyguard, on perhaps ten to twelve occasions.

PRH306 (7, 8 and 9 December)

Again, for Witness PRH306 several statements have been made available to the parties and the judges that the audience does not have access to, nor was a summary thereof read out in court. The parties'  questions to this witness are however based on that undisclosed information, which makes it difficult for outsiders to understand the exact context of the testimony. This witness, as well as witnesses PRH264 and PRH089 below, all testified about a jewelry trader in Beirut, Mr Issa, and his likeliness to accused Mr Badreddine. 

This witness is currently working in a managerial position in a large jewelry business outside of Lebanon, and because of his experience he is supposed to have an understanding of both the business aspects and the sales aspects of the jewelry business. He worked for Mr Issa sometime in 2002 or 2003 in the latter's shop called Samino. The witness testifies that Mr Issa did not know much about the jewelry trade; Mr Issa did not seem to be very much interested in the jewelry shops or the details of the business. The witness and his colleagues did not understand why Mr Issa owned jewelry shops. 

When Mr Issa would visit the jewelry shop, he would always bring one of his girlfriends along, but at a later stage he would also bring his bodyguards. The witness testifies that the manager of all three jewelry shops was a man named Mohammed Chukr, also referred to as Estez Chaker. In the beginning he did not know much about the jewelry trade, but he began to learn on the job. In Mr Issa's office there was no computer, the witness recalls. Sometimes the witness would find a paper and a pen, but nothing much. The witness further recalls that the brother of Rustom Ghazaleh (Rustom Ghazaleh was the head of Syrian security in Lebanon) visited the shop on one occasion, but that Mr Sami said he should go to another shop; this was approximately late 2004. The witness further states that Mr Issa did not do any work in his office on the top floor of the jewelry shop. He did take naps in that particular place, though, and he would bring girls there. He said he wanted to take advertisement photos of the girls, but he never did. In March of 2005 the witness stopped working for this jewelry shop.

The witness is asked by counsel for the Prosecutor to identify several phone numbers that were used by Sami Issa at the time, and similarly for the aforementioned person Mohammed Chukr, as well as employees from the jewelry shop.

The witness is then asked more questions about this person Chukr, who was an accountant, according to the witness.

The witness concluded that Mr Issa belonged to the Shia sect of Islam, from his accent which was mostly that of a Shia Muslim, the fact that he did not specify to which confession he belonged, and that he wore a beard and black clothes during the Ashura festivities, which is a Shia religious occasion. The witness is also presented with photographs by the Prosecutor, and asked to identify the  building on those photos, which is the jewelry shop. He is further asked to indicate on a map the exact location of the shop. He further identifies other jewelry shop branches from the same owner.  The Bourj-Hammoud shop was closed on the day of the assassination of Rafik Hariri, and never reopened again. The witness had been told they wanted to keep that shop closed because the economy was going down, although the witness said the economic situation was good.

Mr Issa didn't like his pictures taken; the witness describes him as tall, thin, completely bald, and he walked with a limp. The witness and his colleagues all found him a mysterious person; he didn't say much about his family background. The witness further details that he found Mr Issa a calm, quiet and understanding person.

The witness had found a picture on the internet, and he had subsequently contacted the Office of the Prosecutor. The person looked like the Sami that witness knew, but in the picture he had hair, and he looked younger. But otherwise, the features were the same. And this photo was of Mr Badreddine on his application for the Lebanese American University. 

Mr Issa's girlfriend had sent text messages to Mr Issa from the witness's phone when she had forgotten her own phone, and some of these are read out in court.

In cross-examination by Mr Edwards, defending the interests of Mr Badreddine, the witness is lead to testify that Mr Issa was in fact more interested in the business aspects of the jewelry store than came out in his testimony-in-chief. Judge Akoum further questions the witness about his conversations with Mr Issa. They had many phone conversations, some of them lasting up to about an hour, but the witness does not recall the content of those conversations.

PRH264 (10, 14 December 2016)

On 10 and 14 December, witness PRH 264 testified in court for the Prosecution. This witness was a friend of witness PRH089, who testified on 15 December (see below for a summary of his testimony). Witness PRH264 was a friend of Mr Issa, and assisted the latter in his jewelry businesses.


[Screenshot of pixelated face of witness PRH264 testifying in court under protective measures.]

This witness currently works as an assistant to a relative of Rafik Hariri, as he did in 2004 and 2005; the witness is also befriended to that person. Sami Issa also formed part of this group of friends; they used to all go out together at that time and several of them attended university. Sami Issa was also referred to by Safi by his friends. The witness regarded Mr Issa as a close friend. Mr Issa never wanted his photographs taken, nor would he ever talk about his personal life or his family. They never talked about politics in their group when they went out, perhaps only superficially. They went out very often, perhaps four times a week. Witness PRH089 was not part of this group. The witness visited Mr Issa in his apartment on several occasions. The apartment had been mainly empty. The witness describes Mr Issa as neither fat, nor thin, had very little hair and had a whitish skin color, between 1.75 and 1.80 meter tall. Sometimes he wore glasses, sometimes he didn't. Like the former witness, this witness testifies that Mr Issa had a problem with his leg, that he had burnt it, though it wasn't a noticeable limp, he just walked slowly. Mr Issa was a Muslim of Shia confession. He had never told the witness that directly, but the witness concluded that from the Muslim festivities that he would celebrate, also referring to the Ashura festival, though unlike the former witness, this witness did not notice any difference in Mr Issa's appearance during that festival. "You don't need to be an expert to understand that", the witness added. Mr Issa was a calm and quiet man, the witness states.  Mr Issa would wear a baseball cap most of the time. When he wasn't wearing it, the witness would not notice anything, just his hair, of which he had rather little. The witness is presented a photograph, and the witness indicates that that person looks similar to Mr Issa, though indicating that the picture is not very clear. "So it looks like him but no 100 per cent."

After the attack on Mr Rafik Hariri they had all been upset and sad, including Mr Issa, though they didn't go into the details of what had happened in their discussions. On the day of the assassination, Mr Issa had sent a text message to the witness in which he had asked him to call him back, but the witness does not recall the content of that conversation, which lasted approximately three minutes.

When the witness knew Mr Issa in 2004-2005, he estimates the latter was between 35 to 40 years old. The friendship remained until 2010, after which they all lost contact with each other.  He stopped calling the witness and the others from their group and he disappeared. Nobody knew what had happened; his phone lines were disconnected.

PRH089 (15 December, cross-examination will follow)

This witness was the employer of witness PRH264, the previous witness summarized in this blog and also a friend of Mr Issa. In 2002, the witness had been a student at university in Beirut, and that is where he first met Mr Issa. The witness did not know this person as Safi Badr. In mid-2004 the witness left university to start his own company. This witness saw Mr Issa three to four times a week, in a group of friends. The witness does not know what Mr Issa had studied at university. They had active telephone contact during 2003 and mid-2005, after which it became increasingly less frequent. During their meetings they discussed general topics including cars, clothing, and phones. The witness recalls that, regarding political opinions, Mr Issa's opinions were quite different from the witness's. Whilst they followed the former Prime Minister's, i.e. Rafik Hariri's, Mr Issa was from the other political side. The witness knew nothing about Mr Issa's family, though he knew he had not been married at the time, nor did he have any children. Mr Issa had a boat named Samino.

Mr Issa used to bring several bodyguards with him, and in his car he had a machine gun. The witness was not scared by seeing the machine gun in the car, and he did not think it was strange for Mr Issa to have this kind of security. He was a jewelry businessman. Mr Issa had a luxury car and a luxury watch, the witness testified.

This witness also testifies that Mr Issa is a Shia Muslim, Mr Issa had told him that during a conversation. He had also informed the witness that he had traveled to Syria, though the witness couldn't say the reason for that. The witness described Mr Issa as being between 170 and 175 centimeters tall, in his early 30s. He used to shave his hair very short, and he used to wear a baseball cap most of the time. He would have a goatee, though he would change it, nothing was permanent. The witness describes Mr Issa as having average weight. The only distinctive feature was an injury in his leg, probably his right leg. It had happened during a car crash, according to this witness. On one occasion the witness had seen Mr Issa's legs, and he saw the injured leg was thinner than the other. When he walked, Mr Issa had a slight limp. The witness further describes the kind of glasses Mr Issa had been wearing, thin and dark, he thought they were prescription glasses. He wore them most of the time. Mr Issa did not have a particular accent, the witness states, though Mr Issa had told him he came from the south of the country.

After Rafik Hariri had been killed, the witness and Mr Issa had had a phone conversation during which Mr Issa had told the witness that Mr Hariri had been doing good, charitable work, and that he should not have been stopped.

The witness is shown a photograph, and he says "I could say that he looks like Sami Issa, but I couldn't swear to it."

This witness was not yet cross-examined during this session in December 2015, because the defence for Badreddine needed more time given that the Prosecution had provided more evidence on this witness's testimony at the last moment. The Chamber had ruled that the defence would be given more time, and cross-examination of this witness would be permitted to postpone until somewhere in the new year. This portion of this witness's evidence will be added to this blog at a later stage.