The Published Form of Indictment: A Legal Study
First: The Reference
Second: The Fundaments
Third: The Circumstantial Evidences
A- An Approach to the International Forensic Law
B- An Approach to the Lebanese Law
Fourth: The Evidences and Elements of the Indictment
Fifth: The Grey, Ambiguous, or Empty Intervals
First: The Reference
1. The indictment issued by the Prosecutor General of the Special Tribunal for Lebanon (STL) Daniele Bellemare on June 10, 2011
2. The indictment-ratification resolution issued by Judge of Preliminary Procedures of the STL Daniele Francine on 28 June 2011
3. Resolution 1757 of the Security Council on May 30, 2007, stating the validation beginning of the unmade agreement between the United Nations and the
Lebanese Republic concerning the establishment of a special tribunal for Lebanon and the attached basic discipline of the tribunal, starting with June 10, 2007
Second: The Fundaments
1- This legal study is concerned with the aforementioned indictment and the indictment-ratification resolution, with disregard to the basic objections regarding the establishment of the STL - the objections which we won't forsake, on which we have offered plenty of explanations, and which are related to the legality of this tribunal in the light of our principles, sovereignty texts stated in the National Accord Document and the Constitution, as well as the principals, rules, and texts stated in the United Nations Convention and the principals, rules, and texts composing the International Forensic Law which sheds the fundamentals and procedures of the recent international forensic justice.
Not only do we fortify ourselves in our sovereignty fort, which we strictly adhere to, but also we are concerned about the International Forensic Law which resulted from the need of the entire humanity to punish the perpetrators of integrated crimes committed against humanity and called "crimes against humanity", in addition to crimes of war and aggression.
In the context of the establishment of the STL and the course of its work, this International Forensic Law is currently witnessing perversion and abnormality which may frustrate this Law and alter it into an excellently undisciplined and selective one. In fact, Antonio Cassese himself made the famous saying, which included a paradox, when he headed the International Tribunal for the Lands of Former Yugoslavia: The International Law "has a lot of gaps (replete with lacunae)"*
A.Cassese, International Law, Oxford University Press, 2001,158 *
2- In the light of what's been mentioned, this study is going to use "the Tribunal's language", its texts, and the rules of its procedures, for this study addresses, at a time, the public opinion, the people of legal opinion and specialization, and all disciplines of the Special Tribunal, whereby for the sake of achieving its mere scientific and objective aims, this study is theoretically and totally departed from the aforementioned basic and dangerous objections on the legality of the Tribunal, as well as from the objections we've made on the rules of procedures and proof, which have been adjusted gradually, as well as on the agreement warrants or protocols signed with the government of the Lebanese Republic.
Thus, our study shall scientifically and totally deal with the indictment and the ratification resolution we've mentioned at the beginning of this study; this is upon:
- What the agreement attached with the Resolution 1757 (2007) points out: "Establishing a tribunal of international character upon the highest international standards in the field of forensic justice,"
-What Material 3 of the rules of procedures and proof points out regarding the explanation of rules in accordance with the spirit of the basic discipline and the principals of explanation defined in the International Martial Law, particularly in Materials 31 and 33 of the Vienna Agreement for the Law of Treaties in 1969; in the international standards for human rights; the general principles for the International Forensic Law and the rules of procedures; and when necessary the Lebanese of the basics of penal trials.
The condition is to respect the rules mentioned according to the priority of their arrangement; that is, the rules of the Lebanese law come last and once the references prior to the Lebanese law seem empty of a convenient explanation rule - on condition that the most convenient explanation for the suspect or accused side be validated - in reference to the aforementioned arrangement - in case of disability to shatter the ambiguity of whatever is in the texts of the rules of procedures and proof.
3- It is legally valid that, in accordance with the presumption of innocence (Présomption d'innocence), the prosecutor general is responsible for proving charges (Preuves à charge). Regarding the STL, the prosecutor general is to play this role basically with respect to the allegations and charges, without dropping the charges (Preuves à décharge), for this assignment is to be handled by the head of the defense office of the preliminary procedures. However, the judge of the preliminary procedures has a stable role in making sure that the charges, the foundations and summaries of the charges, in addition to the suspects' rights are proper before ratifying the charges and setting the trial on.
Hereupon, it is important that the evidences of charges meet the least extent of credibility, competence, accuracy, and adjustment as long as the charges are supposed to take into account the international standards in the field of forensic justice and as long as the charges are not discretional. The evidence on this is imposing the ratification treatment before setting on the trial procedures, and this adds, to this ratification treatment, an ultimate importance as regards checking the correctness of the charges' elements, credibility, and evidential power of charges; hence, the international tribunal can be started on right bases rather than simplified ones.
4- The Prosecutor General Bellemare has committed the dangerous and forbidden (mistake) which we know, and which we mentioned during our press conference on January 9, 2010;this forbidden (mistake) was leaked on the widest scale and was the talk of media outlets, starting with "Der Shpiegel" and reaching the Canadian Broadcasting Company (CBC); whereby Bellemare issued the indictment, six years and a half after the investigation, the principle of the secrecy of which he violated repeatedly and scandalously, depending, almost exclusively, on the analysis of mobile-phone data; therefore, he simplified the charges evidences with excellently circumstantial evidences containing so much discretion; provided that Bellemare, as well as Cassese himself, had earlier introduced those evidences in a forestalling and promoting manner. In an interview with Bellemare by journalist Arthur Blok, which was published by "Lebanon Now Website" on August 30, 2010, even considered that "the circumstantial evidences are the absolute evidences!" This means that they enjoy an evidential power surpassing direct evidences. During the same interview, Bellemare added that the circumstantial evidences "are a number of simple truths, which, once considered one at a time, might mean nothing to you; yet, when you gather these truths, the perfect image becomes irrefutable (irrefutable)!"
As a matter of fact, what we foresaw in our previous press conference upon the media leaks has today become a tangible reality through the form, content, and diagrams of the indictment, whereupon this reality eventually reaches conclusions full of discretion and naivety; that is, conclusions based on the telecommunications data of cellular phones!
As for Cassese, he embarrassed himself, the preliminary procedures judge, and the Tribunal in March, 2010 by theorizing in defense for the circumstantial evidences and their evidential power as the media leaks were made concerning the indictment and its direction and elements - fifteen months before the indictment ratification; this made Francine point out - quite significantly - that the Appeal Chamber had actually reached "plain legal results without any sign of facts" or knowledge of facts in its preliminary resolution on February 16, 2011 concerning the law which the accusation elements had to be subjected to! (Note 28 of the ratification decision)
Third: The Circumstantial Evidences
We recall - totally briefly - what we exposed in the press conference we held on January 9, 2010 as respects the issue of circumstantial evidences and the inclination of Prosecutor General Bellemare to accredit them exclusively, without referring to any direct evidence - which was apparently unavailable to him. He supported his inclination with what the Head of the Tribunal Antonio Cassese had aided him with: direct or absolute evidences are unavailable in terror crimes, and they are hard to gain. Then, we said that circumstantial evidences, or indirect evidences, are based on a series of facts or presumptions to prove a certain fact - unlike the direct evidences, which prove a certain fact without any presumption or deduction.
The direct evidence can stand alone to prove a certain allegation; accordingly, it enjoys more credibility and a stronger evidential capacity than a circumstantial evidence. Actually, a circumstantial evidence is based upon a certain reality or presumption, on which we build facts and presumptions; thus, it alters a digital material into a material of accusation of an homicide, political assassination crime, which is described by the Lebanese Law of Penalties as a crime of terror. Then, making up for the emptiness, we go on upon the basis that a military wing of a party listed on a grand state's terror list - without any UN description or definition of the concept of terror or an international, particular, and unified penalty for it. Then we announce that the accusation is documented since the individuals accused of that crime belong to this party, falling into a further controversy that expresses confusion and naivety; once, we remember that they belong to this party (adherents), and another time, we remember that they are supporters of it (sympathisants)!
Fourth: The Indictment Evidences and its Elements
Bellemare proved the rightness of the written and visual media leaks that started in 2006 over the content of the indictment, and our expectations say that this man has nothing to present but the self-tumbling "telecoms evidence", which we have proved before. This is also due to what has been proved by experts in this technological sector that is rapidly developing due to the presence of firm means to violate the networks and manipulate the data, in addition to finding geographical and time overlaps between one or different mobile phones.
Furthermore, Fransen has denied Bellemare's use in this regard, which represents a base for the indictment, the trait of an "expert report"; that if it were present, it would have given a relatively scientific credibility.
Moreover, Bellemare denied the "Israeli" breach of the telecoms network in Lebanon; the breach that was confirmed by the Lebanese judiciary through the interrogations conducted with the agents, and was denounced by the International Telecoms Union after confirming its occurrence. However, Bellemare did not stop there, but went further in the discretion to fill the gaps and strengthen his indictment in vain, for he was driven to blatant attenuation, as we shall show bellow.
Bellemare took the initiative in paragraph 3 of the indictment to justify resorting to circumstantial evidence that are based on logical reasoning and conclusion on the grounds that it is reliable in most cases(?), more than relying on direct evidences that can be exposed to direct erosion of its memory or confusion.
He reached the confirmation that "in law there is a recognized principle that states that circumstantial evidences are similar to direct evidences in terms of weight and probative value, and that the circumstantial evidences could be stronger than direct evidences", he continued to say as he stated to the press previously in this context. However, that approach did not prevent Bellemare from relying on testimony of who contacted the four indictees on the private mobile phones, as he claimed; therefore he fell into a suspicious contradiction.
As for the elements of the indictment, they are the following, and we leave it for the assessment of the public opinion, the legal and expert opinion makers, and the court authority:
1- Under the title "Analysis of Telecommunications", Bellemare refers that the group of evidences collected throughout the period of investigations, including the witnesses' statements, documentary evidences, and telecoms data records of mobile phones in Lebanon, led to the identification of some persons responsible for the attack on former PM Hariai and his companions. Yet it is surprising that Bellemare limits the details on the telecoms data records, and does not spot light on any witnesses' statements or documentary evidences!
What is the purpose of concealing them (the content at least), if they're available? It is intended here that Bellemare refers to possessing a pile of sufficient, convincing, bright evidences (witnesses - documents), while he doesn't seem to have but the telecoms proof, unless he is restraining the declaration of his evidences. This is uncommon and is of foreign concept in the context of criminal charge; therefore it falls into lack of evidence and reasoning together.
On the level of telecoms evidence that is not an evidence to charge by as we have stated, Bellemare confirms that the mobile phones were registered under aliases, and that the rate of communication between them was high!
He [Bellemare] then arbitrarily divided the mobile networks to different ones, specifying the role of each in the assassination of PM Hariri and his companions, with reference to that some mobile networks users carry and use several phones from different networks, in addition to using some personal mobile phones under aliases.
General Prosecutor Bellemare reached to what he regards as more powerful than the telecoms movement within these networks and private mobile phones, which is the "co-existence".
Bellemare reached in this context to claim the obtainable possibility, when it appears that the network phones, registered by aliases, were associated to personal mobile phones whose users' identity is known through the identity of their callers (?!), in order to know in the end, through co-location, the identity of the person as a user of one of these networks' phones!!
Amazing is this discretionary logic, which is not correct at all levels and that builds serious charges and distributes responsibilities and criminal contributions on such assumptions; which stem from false names without giving what totally helps about the true identity and how to drop the names of the indictees on the mobile phone numbers borrowed. This is until the General Prosecutor Bellemare stated that one of the indictees' past, as a man of experience in terrorist acts - as he put it - supports the conclusion that his real name is "the following" and one of his names is an alias (paragraph 29)?!
I will not add anything in this obvious context, and I will only refer to what Fransen has explained regarding the ratification of the co-location, and this explanation includes all indications and meanings: "When a personal mobile phone is referred to a specific person, then it is possible that other phones of one or more networks are referred to the same person, in addition to those co-located to his phone" (paragraph 43 of the ratification decision).
Fransen says in footnote 43 of his decision what follows: "The co-location is based on the following:
When using many mobile phones in the name geographical area, and the areas are identified through telecoms towers, at the same time and period as the other phones, without having contact between each other, it is concluded that the user of the phones is the same person?!"
Fransen accumulated, from what he knows and doesn't know, the time overlap over the co-location and the discretion and showed the weakness and lightness of this argument, especially in light of what we referred to; that the mobile telecoms sector technology is created and has "many faces and usages and possibilities of manipulation, breach, fraud and targeting". Also this approach, on the concept of admissible evidence in the context of criminal prosecution, is the peak of circumstantialities that cannot present any evidence. Is it possible for this comparison to be more powerful than the direct evidence of what Bellemare has proved in the introduction of his indictment (paragraph 3)?
Therefore, we are not surprised that Bellemare exhausted the indictment with expressions that refer to the wasting of his argument, such as "it is possible to conclude"; after more than 2,370 days since the assassination of PM Hariri and his companions. However we are surprised that Bellemare neglects the evidences that are more valuable than what he has presented in his indictment regarding the possibility of "Israel's" involvement in the assassination; that is if we adopted his approach in the circumstantial evidence!!
2- Bellemare must have felt the need to fill the gaps of the "circumstantial" evidence resulted by the "Analysis of Telecommunications", therefore he fell into more discretion in his pursuit, that is what was recorded and the collapsing argument inevitably falls in the inferior path. He headed towards the party affiliation of the indictees and the party's classification as a terrorist group until reaching... the element of familial intermarriage relation with a symbol of resistance!!
Through reviewing paragraph 59 of the indictment, it is showed that Bellemare announces that the four indictees are supporters of Hizbullah, which is a political, military organization in Lebanon, and that the military wing of Hizbullah was involved in the past (?) in terrorist operations. He added that the people who were trained by the said military wing have the ability to conduct a terrorist act, regardless whether the attack was to their account or not, adding that there are links of familial relations through marriage between two of the indictees, and one with a resistant symbol who was a founder member of Hizbullah, and a military official since 1983 until his assassination in February 12, 2008, and was wanted on the international level for committing terrorist crimes?!
Bellemare concludes in the same paragraph that according to the expertise of two of the indictees, their training and affiliation to Hizbullah, then it is reasonable or possible to conclude (again with the possible conclusion) that they had the ability to conduct the February 14, 2005 attack.
Believe it or not, this is literally what was stated in the indictment which was written by Bellemare and ratified by Fransen!!
A calm and balanced mind directly wonders the following:
a- From where did Bellemare come with the "terrorist" trait, while he knows very well that there is no unified UN concept or penalty of "terrorism"? What international legislation issued by Bellemare's political source (UN) identified terrorism and means of confronting it? Does Bellemare know, and he knows, that the UN General Assembly established in 1996 a special committee for terrorism, whose members are still seeking until now a draft treaty against terrorism, which has not seen light due to the absence of any consensus on the concept of terrorism? In addition, who classified Hizbullah or its military wing that it is a terrorist organization or documented its involvement in terrorist acts? Is it the UN, which has not yet found a way to unify the concept of terrorism on the international level? Definitely not!
Bellemare got this description from the list in which the US included Hizbullah among the terrorist organization, or from any other list that does not have any UN or international classification. Did Bellemare fall into the excess, or did he spontaneously adopt, including what is has of indications, the US position regarding Hizbullah?
On the other hand, what does the party affiliation or military training received by the indictees have to do with accusing them of the assassination of Hariri and his companions? Is only affording to, and being capable of doing something, in an overall assumption, proves the charges of a terrorist crime in the concept of our national law?
On a final level, what do kinship and intermarriage relations have to do with a criminal act?
Fifth: Grey, Ambiguous, or Empty Sections
1- Bellemare wasn't able to reveal the identity of all the perpetrators, instigators or participants, as stated in the indictment, which questions the validity of relying on the analysis of telecoms in light of this limitation that is added to the absolution discretionary features of his weak argument.
2- Bellemare was not able to identify the suicide bomber, while his predecessor Brammertz has reached to identifying certain characteristics of the suspect. Is there negligence to it or insufficiency? (paragraph 52)
3- Bellemare could not determine the fate of Abu Adas, only that the latter has been missing since his supposed arbitrary meeting with one of the indictees. This meeting was which we did not understand how Bellemare was sure of its occurrence, in addition to Abu Adas' exploiting of two indictees to announce his responsibility falsely of the attack on Hariri (paragraphs 35 and 39).
4- Bellemare was not able to confirm what he claimed that two indictees used public phones to call Reuters and al-Jazeera, in a location near the "tree in which the tape was hidden"! (paragraph 54).
5- Why didn't Bellemare initiate to listen to the four indictees after he suspected them, while he has previously summoned some elements and cadres from Hizbullah for questioning as witnesses by the International Commission of Inquiry, especially in what is related to the telecoms evidence, and they were then left without suspecting them?
6- What are the characteristics of the explosion, in particularly the fundamental trait, i.e. Mitsubishi Canter van weight of explosives: Is it 2500 Kg approximately of TNT, as Bellemare specified it (Paragraph 51) or 1200 Kg at least of the same substance as Brammartz specified it in the fifth report of the Independent International Investigation Commission in September 25, 2006 (paragraph 18)?
This is the tip of the iceberg, and this is enough of reasonable and legitimate questions, but we draw attention that these gray, ambiguous or empty sections can justify the issuance of further indictments. This formulates an innovation in the forensics on the level of homicides. While it is adopted in the aforementioned science and practiced laws that only the decision to prevent the trial accepts amendment in case evidences that were not available appeared, and would justify the resumption of investigations.
However, the worse is that the continuing of international investigations on several stages might put Lebanon under the legal guardianship of the special tribunal, in a continuous and embossed way!
The greatest disappointment is that during the period of international investigation which exceeded 6 years, the investigation should have reached extracts, indicting elements, and credible evidences, and not only analysis of telecoms data or other similar weak arguments that are of no probative value!