Contempt case against Lebanese journalists at the STL

What is this case about?

The Special Tribunal for Lebanon (STL) has recently lifted the confidentiality of contempt proceedings it started in January of this year against two Lebanese journalists and two news corporations in Lebanon. The STL accused them of having published "names of individuals alleged to be witnesses before the Tribunal". Lebanese journalists have acted in solidarity with the contempt accused, but a wider debate has ensued about the boundaries of press freedom and whether the current contempt case is an effort to silence the press in Lebanon.

The journalists published on several occasions names of individuals alleged to be witnesses before the Tribunal. The information was broadcast on websites, TV programs and YouTube. At no point does the Contempt Judge clarify whether the published names are in fact witnesses before the Tribunal or not. And indeed, the Judge should not clarify this for the obvious reason that he may have revealed confidential information by doing so. Thus, the mere fact that they are alleged to be witnesses is in itself a breach of confidentiality.

If convicted, the two natural persons charged with contempt face a maximum sentence of seven years in prison, a fine of 100,000 or a combination. The legal persons can only be fined for their role in the contempt case.

The two journalists and corporations have been summoned to appear before the STL in Leidschendam on 13 May 2014. The summons specifies that the initial appearance may be attended by video-conference, provided that counsel for the accused attends the appearance in person.

A third publication is currently still under investigation; the details thereof have not yet been made public.

Contempt decision of 31 January 2014 (public on 24 April 2014)

On 31 January 2014, Judge David Baragwanath, then the Contempt Judge, issued a Contempt Decision, in which e charged two individuals and two corporate entities with contempt of court. The Contempt Decision is unique in that, for the first time in international criminal law, it charged corporate entities with contempt of court. The investigation against the individuals and corporations was instigated after publication (on TV, website and YouTube) of names of individuals alleged to be witnesses before the Tribunal.

Law on contempt proceedings

In the Decision, Judge Baragwanath considered the purpose of contempt proceedings, which he determined to be "to protect the public from wrongful interference with the administration of justice". He looked at the applicable law and found that, though the Tribunal's Statute does not specifically provide for contempt, the Tribunal's power derives from its inherent jurisdiction to protect the integrity of the judicial process and to ensure the proper administration of justice. Rule 60bis of the Tribunal's Rules of Procedure and Evidence (RPE) provides for the authority to hold accountable those who knowingly interfere with the administration of justice. He found that, although there is no explicit provision on contempt, prosecuting for this crime is not in breach of the principle of legality. This seems to be in line with the jurisprudence of other tribunals, that have argued along similar lines. He further considers the fundamental right to freedom of information and press freedom, but concludes nonetheless that the media, like the rest of the community, must comply with the law. Judge Baragwanath adds that: "Nothing is more fundamental to the rule of law than that there must be no deliberate interference with the administration of justice."

Judge Baragwanath further decided to include legal persons in the contempt proceedings, a unique phenomenon in international law, the importance of which should not be underestimated. The applicable provisions of the STL do not specify whether or not it is possible to prosecute legal persons for breach of Rule 60bis RPE provisions. He further analyzes national case law, including Lebanese law that indeed allows for criminal prosecution of corporations. He notes that, indeed, no such prosecution has ever taken place under international law, but he emphasizes that there  is nonetheless an "international trend" toward criminal liability for legal persons, particularly, he states, with respect to contempt cases, where corporate entities hold great power in their ability to publicly disseminate information. This decision may lay a foundation for further development of liability of corporate entities in international criminal law.

Appointment of an amicus curiae investigator and a new Judge

The Judge appointed an amicus curiae to further investigate the matter. The amicus investigated the allegations, and recommended the issuance of orders in lieu of indictments against these persons, legal and natural. The amicus also investigated the source of the information, but did not come any further than indicating that it was "unlikely" that such information was leaked from within. 

Judge Baragwanath ordered the contempt proceedings to be initiated against Al Jadeed TV and Ms. Kharma Khayat, and Al Akhbar and Mr. Ibrahim Al Amin. This Judge subsequently, and after much deliberation of other cases, including the Hartmann case at the ICTY, decided to recuse himself from further proceedings against the four, as "this means I am now the prosecutor of the contempt issues. I cannot now become judge of the same issues".

Summons to appear - 18 March 2014

The first Contempt Judge Baragwanath designated Judge Nicola Lettieri as the new Contempt Judge in these proceedings. He then summoned the four, legal and natural, persons to appear before the Tribunal (Summons). At the time of the filing of the summons, the documents remained confidential, and only on 24 April was the confidentiality thereof lifted (Order lifting confidentiality). The persons are summoned to appear before the Contempt Judge on 13 May 2014, in person or by video-conference.

Der Spiegel: publication of sensitive information

The German weekly Der Spiegel on a previous occasion disclosed details of the then confidential indictment, including the names of potential suspects, before it had been made public by the Tribunal. The Canadian CBC revealed sensitive information about the STL's investigation, including information in relation to tracking of telephones used by the suspects of the Hariri assassination.

However, the publication of sensitive information is of a different nature than publishing names of potential witnesses. Witnesses may be at a personal risk by playing a role in the proceedings, and the Tribunal has an obligation to protect their safety.  If their situation is such that they may be at risk because of that, they may receive protective measures that will shield their identity from the public and/or other parties. By publishing names of potential witnesses that are deemed confidential, this system is compromised, the proper administration of justice may be endangered and the lives or health of individuals may be at risk. By instituting proceedings against these journalists and their employers, the Tribunal issues a very clear warning signal to the press community that such behavior is off limits.

Previous cases at the other tribunals

Other international tribunals have dealt with similar cases, as will be discussed below. Generally, there is consistent jurisprudence that the publishing of names of alleged witnesses is subject to contempt of court proceedings.

Rwanda Tribunal (ICTR)

The Rwanda Tribunal does not have many cases of prosecuting journalists for contempt in relation to the publication of witness-related information. However, in 2006 the ICTR prosecutor attempted to prosecute the French language paper Diplomatie Juridiciaire and war crimes reporter Thierry Cruvallier for an article (see here and here) revealing the identity of a potential prosecution witness in the Bagosora case and his possible involvement in the genocide. The then-Prosecutor Carla del Ponte sent a letter to the newspaper, warning that if it would not retract the article, she would bring the matter to the ICTR. The Prosecutor's request to prosecute the newspaper was, however, rejected by the Chamber dealing with the matter, and there is not much information available about the details of this case.

Yugoslavia Tribunal (ICTY)

When considering the case at hand, mainly the contempt case against Florence Hartmann at the ICTY comes to mind. She was previously spokesperson for the Office of the Prosecutor of the ICTY. Working for then Chief Prosecutor Carla del Ponte, she had obtained information in relation to the role the Serbian government had played during the Bosnian war. After she stopped working for the ICTY, Florence Hartmann continued to work as a journalist, and in that capacity published a book about the Milosevic case. In her book, she included details of decisions that had been redacted by the ICTY. The Appeals Chamber convicted her initially of a fine that was later transformed into seven day prison sentence; however, France has refused to extradite her.

There was further the contempt case against journalist Baton Haxhiu, who was convicted for contempt because of revealing the identity of a protected witness in an article he wrote as an editor of a Kosovo newspaper. There is the contempt case against Josip Jovic, who was found guilty of contempt as an editor-in-chief of Slobodna Dalmacija, he disclosed the identity and testimony of a protected witness. Journalist Domajov Margetic was found in contempt of court for publishing the names of 102 protected witnesses on a website. Dusko Jovanovic, editor-in-chief of the Montenegrin daily newspaper Dan, was charged with contempt of court for revealing the identity of a protected witness who had testified against Milosevic. The ICTY dropped the charges against Jovanovic after he had published an apology.

International Criminal Court (ICC)

The Kenya cases at the ICC are closely followed by the media in Kenya which are generally quite critical of the proceedings. There have been several incidents concerning the revealing of confidential information in relation to prosecution witnesses. Notably, the first witness in the case against Ruto was not named in court, and face and voice distortion were put in place during her testimony. Nonetheless, the BBC reported that, shortly after her testimony, numerous bloggers and social media entries published her supposed name. Judge Chile Eboe-Osuji subsequently warned that anyone revealing the identity of a protected witness could be guilty of contempt of court, in an attempt to prevent further disclosure of confidential witness information.

Walter Barasa, a Kenyan journalist, is accused of interfering with prosecution witnesses by paying them bribes. The ICC has requested his arrest, the first time for the ICC to issue an arrest warrant for trying to influence witnesses. Kenya has not yet transferred him to The Hague and the proceedings are on hold.

Commentary

The contempt case against the journalists seems to be a logical consequence of the publication of names of alleged witnesses. Given the case law of the other tribunals, there is a proper basis for doing so. The prosecution of the corporations for contempt of court is, however, unique in international criminal law (for an excellent analysis of this aspect of the case, see this blog by Dov Jacobs).

A heated debate has arisen within Lebanese society about the legality of the contempt cases (see e.g., this article in the Daily Star by Kareem Shaheen), and the STL must be very careful by not making matters worse for its perception. The Contempt Judge dealing with this case must ensure to provide very clear reasoning in her decisions, so as to avoid further unnecessary questioning of her assessment.

While the journalistic community within Lebanon seems united in support of the accused (see here), several members of cabinet involved themselves in the debate. The Minister of Justice urged the accused to respect the summons and to appear before the Tribunal on the 13th of May (see here), whilst the Information Minister supports the journalists, though at the same time indicating that the "important thing is that the two media outlets defend themselves properly by adopting all the legal means as per the tribunal's mechanism" (article Naharnet).

There is a fine line between press freedom, which is fundamental to the rule of law, and attempts to silence journalists. This is why this debate is so important and everyone's voice should be heard. Critical analysis of the decisions should be made by lawyers and journalists.

In this particular case, the publication of names of witnesses is one step too far: the fact that the Tribunal does not tolerate this is understandable. The critique that the source of the leaked information should be prosecuted rather than the publishers thereof is disputable. If the source is found by the investigator at some point in the future, naturally, measures should be taken against such person. However, this does not detract from the fact that the publication of such information in itself is prosecutable under the Tribunal's legal system.

Status Conference of 10 April 2014

Yesterday a status conference was held. Due to the joinder of the Ayyash et al. case with the Merhi case, resulting in five accused facing charges under the same indictment, the trial has been adjourned since mid-February in order to enable the defence team for Merhi to prepare for trial. The state of preparations of the Merhi Defence and other matters related to setting a date for the resumption of trial were the main topics discussed during this hearing. Other matters covered were the cooperation of Lebanon with the defence teams and some pending motions and requests.

The Defence for Merhi set out its progress with trial preparations, having just appointed various defence experts (including an explosives expert and a telecommunication expert) who have started to prepare their reports. The Merhi Defence further explained that it estimates to need another 4-5 months to file its Pre-Trial Brief, and expects to be trial-ready in 5-6 months. The Chamber made the observation that because the other four Defence teams have contested the entire Prosecution case in its Pre-Trial Briefs, the Merhi Defence will only need to set out the general framework of its defence, and no detailed or comprehensive Pre-Trial Brief is needed at this stage. The Merhi Defence however stated that it will need a full understanding of the case and analyse the complete case file before filing its Pre-Trial Brief and being ready to resume trial, thus also objecting to the approach of re-starting the trial with the least contentious evidence (for example so-called crime base witnesses), postponing calling evidence directly related to the accused Merhi to a later stage of the proceedings. In general, the Trial Chamber seemed to be suggesting that this is the approach they are currently considering, an approach that would not be out of line with the Prosecution’s approach so far in presenting its evidence. The Prosecution has started its case by calling mostly crime base witnesses, victims and experts in relation to the explosion and forensic investigations after the attack. The Prosecution indicated it would not oppose such a phased approach and suggested to identify groups of witnesses to start with after the resumption.

The Chamber further set a deadline of 24 April 2014 for the Merhi Defence to provide a Rule 161 notice in relation to five Prosecution expert witnesses – that is its position on the expert report and his or her expertise, and its wish to cross-examine the expert. These five experts are (largely) uncontested by the other four Defence teams. This also suggests that the Chamber is thinking of the possibility to call these five experts relatively soon. After deliberations the Chamber further ordered the Merhi Defence to file its Pre-Trial Brief by Monday 26 May 2014, giving the Defence significantly less time than requested. A Pre-Trial Conference will be held on Monday 16 June, with another status conference to be held before that time, that is some time in early May (written reasons for these orders will follow in due course). It’s very likely that the trial will resume soon after the Pre-Trial Conference.

Summary of witness testimony 4 – 10 February 2014

This blog post summarizes the last days of the Prosecution case before the start of the joinder hearing. In the mean time, the Trial Chamber has ordered the case of the fifth accused Merhi be joined to the case of Ayyash et. al, and ordered a stay of the proceedings until mid-May in order to give time to the defence for Merhi to prepare its case. In the mean time, the Merhi defence has filed a request for certification to appeal the joinder decision. The request argues that the Trial Chamber violated Mr. Merhi’s defence rights when issuing the joinder, and that an appeal against the order is warranted, however, the requirements for filing an appeal with this tribunal are quite strict (see Rule 126(C) of the Rules ofProcedure and Evidence). At the time of posting this blog, the Trial Chamber has not yet ruled upon this request.

4 February 2014

Witness #10: Mr. Assaad Nohra (PRH139)

Mr. Nohra testifies through video linkage. This witness is now a brigadier-general at the Internal Security Forces (ISF). Mr. Nohra was the head of Forensic Laboratories Bureau of the ISF when the bomb attack on former Prime Minister Rafik Hariri and his convoy occurred. Mr. Nohra explains the structure of forensic investigations within the ISF at the relevant time:

The Forensic Bureau at the time was divided into three bureaus: The Forensic Laboratories Bureau, the Identification Bureau, and the Accidents Bureau. And our work focused on the following. The Accidents Bureau focuses on the crime scene. It examines the crime scene and gathers the evidence and traces. The Identification Bureau examines the finger-prints and the sketches. The Forensic Laboratories Bureau carries out the necessary analysis, whether chemical, biological, or physical. And then we organize a report with the results of the analysis and we give the necessary information for the investigation.

The witness testifies that the law stipulates that the Forensic Laboratories Bureau (FLB) does not go to a crime scene, but only receives evidence at the bureau to carry out the necessary analysis. The FLB was mainly involved in DNA analysis of human remains samples that were sent to the bureau to be sent on to private laboratories to be analyzed.  Some samples were sent through the FLB, others were sent straight to the private laboratories by the investigators. Some cotton swabs and soil from the crime scene were delivered in order to determine the type of explosives that were used in the bombing. Mr. Nohra’s department sent a report of the first two weeks of lab investigations to the Scientific Investigations Department.

The witness Mr. Nohra indicated that in relation to Mr. Ahmad Abu Adass—the person allegedly responsible for the false claim for the attack—the DNA of him or his parents did not match any of the DNA found at the crime scene. Shortly after the 14 February 2005 attack, a video was received by al Jazeera with a letter attached to it, on which Abu Adass claimed to have been the suicide bomber on behalf of a Sunni fundamentalist group.

By presenting this witness’s evidence, the Prosecution laid a foundation for its argument that the video by Abu Adass that he was responsible for the attack contained a false claim.

Witness #11 – PRH-301

This witness also testified through video linkage, and protective measures apply to him. At the beginning of March 2005, this witness was asked to provide technical assistance to a team of Swiss explosives experts, though he is not a forensic expert himself. He assisted them in surveying the crime scene. The crime scene was divided up into sections for the purposes of searching. The witness was asked to accompany them and draft a report, and to take pictures of the crime scene, similar pictures to those that were taken by the Swiss experts, were included in the report. The witness was asked by the Swiss experts to empty the crater of the water inside, which he in turn requested the civil defence to do. The witness further indicates that the experts asked him to dig up the soil in the crater to filter a metal piece that was inside it. On a picture that is shown to the witness, this piece is identified, and the witness describes that it is a car part holding the Mitsubishi sign.

5 February 2014

Witness #12 – PRH-566

Witness PRH-566 testifies again through video link and is also protected by protective measures. In 2005, this witness worked for the ISF where he had an administrative role in the Bureau of Explosives, which was concerned with bomb disposal and investigation after explosions.

This witness, like witness Brigadier-General Soussi, also attended the ISF officers’ meeting at the Beirut military court later in the afternoon of the 14^th of February 2005. The experts who attended that meeting brought in two pieces of metal. Those were stored at the Explosives Helou barracks. The military judge asked those present to do whatever necessary regarding the explosion that had occurred on that day.

During his examination-in-chief, this witness is shown a report that he drafted that mentions the items that were collected on 14 February 2005. The witness describes some car parts that were found in the crater on that day. Some of the metal parts were identified as belonging to the fourth vehicle of the motorcade, being a Mercedes 500 type car. Other car parts of the vehicle that had exploded belonged to a Mitsubishi car, supporting the Prosecution’s case that the explosives were carried in a Mitsubishi Canter van. The witness had shown the car parts they found to, inter alia, a Mitsubishi dealer, and the latter confirmed that the parts indeed belonged to a Mitsubishi car.

From 12^th March 2005 onward, divers searched the seabed around the St. Georges area, and managed to retrieve more items; they were again Mitsubishi car parts. The Prosecution shows pictures and physical exhibits, including Mitsubishi parts, to the witness, to introduce those pieces of evidence before the judges.

Mr. Larochelle for Oneissi confronts this witness in cross-examination with his telephone number at the relevant time. Counsel asks the witness whether he knew a person called "Jameh Jameh" at the relevant time, which the witness confirms. The witness states that Jameh Jameh had been a public figure in Lebanon at the time. The witness is confronted by counsel that he knew at the time that Jameh Jameh had worked for the Syrian Secret Service, and that the witness had a number of telephone contacts with him between January and March 2005. The witness responds that he does not remember. However, the witness confirms that, after being introduced to Jameh Jameh in January 2005, the subsequent contact they had had been on 15th February 2005. The witness states that the fact that Jameh Jameh called had disturbed him. Many contacts between them took place over the subsequent days. The witness states: "They were the rulers on the ground" and the "de facto rulers". He further testifies that "at that time, such connections were essential in order to protect ourselves, to prevent harm. He was an influential person".

6 February 2014

Continuation of evidence given by Witness PRH-566
The subsequent day, Mr. Edwards for the Badreddine defence continues the cross-examination of this protected witness and takes him through the guidelines applicable to the experts at explosion sites. More in particular, he highlights Regulation 319 on how explosives experts should act in case of an explosion, requiring that items of evidence should be sealed in some way. However, later on there is confusion about the meaning of "sealing" in its Arabic translation. The witness explains that by "sealing" they mean the concluding of a report. The witness confirms that any expert not abiding by the rules is sanctioned. At the same time, he acknowledges that he himself didn't sanction any person because he was very inexperienced at the time.

Mr. Edwards confronts the witness with the fact that at the crime scene, selecting those items from the car "was a difficult process to be undertaken by the experts at that time", which is why they started first investigating the crater. Counsel Edwards calls the initial investigation "a rushed job", but the witness responds that the investigations were conducted by the experts, not by him. It seems that official procedures were overlooked in this instance, because of the magnitude of the explosion and the hurry of the investigations. The witness further admits that "the experts were not properly trained on how to preserve a crime scene", and the witness himself indicates that he, as the head of the explosives bureau, "did not have enough experience in terms of explosives or managing crime scenes".

On 14 February 2005, witness was already informed by experts that it had probably been a car bomb, though they didn’t know the type of vehicle. Witness relied on that preliminary assessment. Also at the meeting with military investigating Judge Rashid Mezher did the witness hear experts say that the explosion was due to a vehicle explosion. Mr. Edwards then asks the witness whether, by assuming this conclusion at such an early stage, the witness may have closed off his mind to other possibilities as to how the explosion may have happened. Witness merely responds to this by saying that he listened to the experts. He does indicate, though, that the engineering regiment of the Lebanese army did have a different understanding, namely that the explosion had taken place underground. But since the experts of witness’s bureau informed the witness that it had taken place above the ground, he followed their expertise. It was after they found one mechanical part that carried the Mitsubishi logo, they started focusing on parts belonging to a Mitsubishi; this accelerated their efforts to concentrate on the Mitsubishi vehicle.

In the report drafted by the witness, he stated that: “There was a state of chaos in the crime scene, not only during the first few hours following the explosion during which much focus is on extinguishing the fire, saving the injured, and looking for the missing, but regrettably and unnecessarily for a much longer time”. He further stated in his report that the security organs present at the crime scene did not coordinate; the witness specified that this was the case only at the beginning of the investigations.

7 February 2014

Witness #13: Malcolm Wilson (PRH-585)

This witness was a serving police officer with the Metropolitan Police in the UK, a detective with the Counter Terrorism Command. He traveled for the first time to Beirut in June of 2005 to establish if it was feasible to search the seabed close to St. Georges area and a pool with stagnant water close to that area. At the conclusion of their trip, Mr. Wilson and his colleague Mr. Gillett, a police sergeant with the Metropolitan Police, drafted a report. At a later stage, they returned to Beirut with a larger contingent. Mr. Wilson explains how the diving took place, how they searched the St. Georges marina seabed, and the items the divers recovered. One of the items they recovered was a vehicle part with a Mitsubishi logo. The witness is shown that part, but now he cannot recognize the Mitsubishi logo anymore, since it is heavily corroded. He also doesn’t remember now where he saw the logo at the time. He only saw it on that day, and then handed the item over to the UN. The witness states his surprise that you can’t see any of it anymore. At that time, no pictures were taken of the item, only at a much later stage.

10 February 2014

Witness #14: Mr. Khalil Al-Arab (PRH-255)

This witness testifies via videolink from Beirut and is examined by counsel for the Prosecution Mr. Raffray. He testifies about his father-in-law Mr. Yahya Al-Arab (aka Abu Tareq), the patron of his family, who had died in the explosion on 14 February 2005. Witness’s father-in-law used to work for Mr. Rafik Hariri; he used to accompany Mr. Hariri everywhere he went, including his travels abroad. He explains the effect the attack on Mr. Hariri and his father-in-law had on him and his family.

Witness #15: Tanios El-Gemayel (PRH-337)

The next witness, also testifying through videolink, Tanios El-Gemayel, is questioned by Mr. Adhihetty from the Prosecution.  In 2005, this witness was a sergeant working with the Central Accidents Bureau in the Scientific Police Division for the Internal Security Forces (ISF). In that position, his work involved the execution of judicial assignments, including investigating crime scenes.

Counsel for the Prosecution examines this witness on four issues: First, he had to collect DNA evidence from the parents of Abu Adass, the person who, according to the Prosecution, falsely claimed responsibility for the attack. The witness took the samples and brought them to the Forensic Lab Bureau. Second, the witness went to the crime scene shortly after 10pm on the day of the attack to film the transfer of the convoy cars from the crime scene to the Helou barracks. He cannot himself confirm these vehicles belonged to the convoy of Mr. Hariri; he was presented with the cars and asked to videotape their removal from the crime scene. Third, he was asked to collect human remains and non-biological items and to take photographs of those, and fourth, he testified on the collection of items salvaged from the sea by the diving team.

Mr. Young from the Sabra defence cross-examines this witness also on behalf of the other defence teams. He takes the witness through some of his video footage, and asks the witness detailed questions about the cars that he filmed. In particular, he is questioned about the removal of car no. 6, which was done by a bulldozer because of the state of the remains of the car.

The Chamber has suspended the proceedings until mid-May, when the Prosecution is expected to continue its case by presenting further witnesses, this time joined by the fifth defendant that was just recently added to the case, Mr. Merhi.

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.