Confusing testimony by Witness #9

Confusing testimony

Monday 3 February had witness Mr. Abd El-Badih El Soussi (PRH-544) testifying through video linkage. Whilst this witness was supposedly called to testify on the different sections of the Internal Security Forces (ISF) that were involved in the investigation of the explosion site, rather than clarifying this structure, this witness’s testimony led to confusion more than an illumination thereof.

Background of the witness and structure of the explosion investigation

At the relevant time, this witness had been an officer with the ISF. On 14 February 2005, the witness was head of the Explosives and Tracking Section of the ISF; his rank was that of a brigadier-general and his role was an administrative one. Besides the Explosives and Tracking Section that the witness worked for, there was also the Explosives Bureau, an administrative unit. The witness states that these two are independent offices, though, confusingly, he also states that the Explosives Bureau was under his authority. The Explosives and Tracking Section had specialized officers and police dogs to track drugs, explosives, people buried in rubble after explosives, et cetera, whilst the Explosives Bureau is specialized in the field of explosives; for instance their task includes inspection and decommission of suspicious devices, inspection of bomb explosion sites. However, in case of an explosion, it is the regional force of the ISF which carries out the investigation, and not the Explosives Bureau.

Meeting military investigating judge – 14 February 2005

On the day of the assassination of former Prime Minister Rafik Hariri, the witness was on duty. When he heard of the explosion, Mr. El Soussi did not immediately go to the explosion site, as he had not received instructions to do so. Confusingly, he later states that such order, if given, would have come from the Explosives Bureau, though he indicated previously first that that Bureau was completely independent from the witness’s Section, and second, that the Bureau fell under his authority. Instead of going to the crime scene, Mr. El Soussi attended a meeting at the military court that afternoon, called by the military investigating judge.

During this meeting, attended by senior officials, the head of the Explosives Bureau came in and showed two pieces of metal. They were informed they had been found in the crater on the crime scene, and that they believed them to be car parts. In cross-examination, the witness admits that the parts were not protected by any container or plastic bag. A report about those parts was drafted by the head of the Explosives Bureau and sent to the investigating judge. The witness had not been involved in the drafting thereof.

Protection of the crime scene

The regional authority, with the orders of the investigating judge, is the one in charge of protecting and guarding the crime scene. Witness believes only a few days after the explosion, search dogs were requested at the investigation of the scene to search for missing persons.

At the suggestion from defence counsel that the witness may have been aware that parts of evidence were returned to the crime scene to be subsequently photographed, this witness responds negatively.

Conclusion

The evidence this witness presented is not very helpful. It does give an overview of the various government units that were involved in the investigation of the various aspects of the crime scene, but it unfortunately failed to do so in a consistent and detailed manner.

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Week 2 of the Prosecution case: 27-29 January 2014

After the more personal testimonies of last week, the beginning of the Prosecution’s case, this week, the Prosecution brought forward more factual evidence. The catching and rather emotional evidence of these first witnesses was replaced by rather factual narratives. Though the media in Lebanon (for instance: Daily Star, Naharnet and al-Akhbar) seem to be following the STL proceedings very closely, the international media seem to have lost their attention, and catching headlines are no longer sought by the Prosecution at this subsequent stage of its presentation of the evidence in court. Also, the Prosecution’s request to have the fifth accused Merhi’s case joined to the current case of Ayyash et al., remains unanswered for the moment, and the Prosecution is expected to withhold its more important evidence until after that decision has been made by the Trial Chamber.

Witness #7

Monday 27^th January started with the Prosecution calling its seventh witness, Mr. Khaled Toubaili, on the stand. Mr. Toubaili is a recently retired employee of the Beirut Fire Brigade who was on duty on the relevant day, the assassination of Rafik Hariri on 14 February 2005. On that day, at the time of the attack, the witness was in the barracks, somewhat close to the crime site. The witness decided to leave for the crime site immediately, following the clouds of smoke. He took with him two fire trucks and one ambulance and they were the first to arrive at the crime scene. Along the road in downtown Beirut, all they could see was shattered glass everywhere. The sight was horrifying, with columns of thick, black smoke, and closer to the St. George area burning cars and buildings and a crater where the bomb had exploded. When the witness realized the extent of the damage, he called for reinforcements, requesting the assistance of every single firefighter and every truck that was available in the city. The witness oversaw the ambulances taking the wounded to the American University Hospital in Beirut.

Mr. Toubaili refers extensively to the model of downtown Beirut the Prosecution has built, two models to be exact: one of downtown Beirut prior to the explosion and one of the situation after the explosion. He is further showed several pictures taken from the explosion site that he comments on.

In response to counsel for the Prosecution’s question how this incident relates to other incidents Mr. Toubaili has witnessed during his 38-year experience with the fire brigade, the witness states:

“I swear to God that the explosion that we just saw was different. I saw many incidents. Maybe some are really bad, others not so bad, but until now, after even I left the fire brigade, I cannot forget what happened on that day. Because it was a huge explosion, it was horrifying. So until now it's the only incident that I still remember so strongly.”

The next day, 28^th January, the witness resumed his evidence, testifying in response to further questions from Prosecution, the judges, the Legal Representative for the Victims and the Defence.

Witness #8

The next, eighth, witness on the stand was again subjected to protective measures granted by the Chamber, testifying through video link from Beirut under pseudonym PRH-427. This witness is again a relative of one of the victims of the 14 February 2005 attack. Soon after the attack the witness was informed that his brother had been injured during the explosion and that he had been brought to the American University Hospital to be operated on, but his brother passed away during the course of that evening. Similar to the previous witnesses, this witness testifies about the effect this had on himself and his family.

Summaries Read Out in Court

The subsequent day, 29^th of January, the Prosecutor read out summaries of witness statements that the Chamber had already admitted into evidence. Rule 155 of the Rules of Procedure and Evidence  allows the Chamber to accept into evidence written statements signed by witnesses instead of hearing their oral testimony in court. Video footage and pictures were shown and given exhibit numbers.

Summaries of statements of the following witnesses were read out in open court on this day:

• Mr. Sharri: His statement had already been read out in court; this witness had worked in the tunnel providing CCTV to the Prosecution that previously Prosecution expert witness Robyn Fraser testified about.
• Mr. Timothy Jolly: An Australian federal agent with the Australian Federal Police, again testifying in relation to the CCTV footage of the tunnel.
• Mr. Quentin Mugg: A police lieutenant serving the French National Police, again testifying in relation to material used during Robyn Fraser’s testimony.
• Mr. Omar Fayumi: At the time a credit analyst at the HSBC Bank, St. Georges in Beirut, testifying about what he saw on the day of the explosion.
• Mrs. Fatima Qudami: At the time of the explosion, this witness walked alongside the explosion site and sustained injuries as a result thereof.
• Mrs. Lana Ali-Ahmad: She explains that on 14 February 2005 she was in a vehicle that was stopped by the convoy. She then proceeded to follow the convoy in the direction of the St. Georges building, and she testifies about what she saw up to and immediately following the explosion.
• Mr. Majdi Abou-Najem: Whilst visiting his wife at the American University in Beirut, he was a witness of the explosion, and he details what he saw on that particular day and the injuries he sustained.
• Mrs. Nadine Yahya Abou-Najem: Wife of the previous witness; she also testifies about what she saw and experienced that day.
• Mr. Ibrahim Alameddine: His statement details the injuries that he occurred as a result of the explosion, though indicating that he did not witness the explosion itself.
• Mr. Ahmad Nabil Ismail: This witness was head of the photo department at the Al Mustaqbal newspaper, and he describes what happened on the day of the explosion and how the camera footage taken was provided. Several pictures were admitted into evidence in relation to his testimony that were in the newspaper the subsequent day.
• Ms. Helena Habraken: This witness is an analyst for the OTP, and she explains the process behind the adjustment of photographs supplied by witness Ahmad Nabil Ismail of Hariri’s movements on the 26th of January, 2005.

Possible Joinder of the Cases

The Trial Chamber has scheduled a joint hearing on Tuesday 11 February to hear legal submissions from parties in the Ayyash et al. case and the Merhi case, on the possible joinder of these proceedings. As said, the Prosecution is likely to wait for this issue to be settled before bringing forward more relevant evidence.

The first week of Prosecution evidence

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

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

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

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

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

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

Examination-in-chief of first OTP witnesses

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

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

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

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

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

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

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

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

Defence opening statements

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

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

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

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

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

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

First day of trial

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

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

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

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