Politicization of the Special Tribunal for Lebanon and its Clash with the Standards of Justice

Introduction

- Those who follow the course of the political crisis in Lebanon, since the adoption of resolution 1559 that caused a crack in the general situation in the country on both, the political and security levels, notice clearly that the Special Tribunal for Lebanon, which was established under UN Resolution 1757 adopted under Chapter VII of the United Nation's Charter on 30 May 2007 have exacerbated internal deterioration and division among the Lebanese, and embarked the country to gross interference of the international western countries forces and formed a broad gateway and cover to the Israeli infiltration to the depth of vital sectors and to the control of some, as it was demonstrated on the level of Tele-communication and the official data bases for many Lebanese public institutions.

- If truth and justice were an unanimous Lebanese demand, the mechanism adopted to achieve this, and the circumstances and suspicious international interventions and performance and the constitutional and legal encroachments since it was formed to the present day have turned the Special Court to a functional tool to pass international projects at the expense of the interests of Lebanon and its security and sovereignty and to a real threat to stability in it.

- Much has been said about the International Tribunal and its role and objective of its establishment, composition and influence of international forces, and much will be said and revealed too about it in the future.

- However, this conference aims to shed light on the legal aspect exclusively of the task of Special Tribunal for Lebanon, and what gaps and Confusions exist in it's structure and the methodology and the working rules adopted by it which undermine confidence in the possibility of uncovering the truth and serving justice.

- Since the launch of the international investigation and then the work of the tribunal for Lebanon, we have accumulated a number of observations and concerns and inquiries. We had the chance to express some of them to the delegates of the tribunal in a meeting that took place on March 30, 2010... And waited for answers throughout the last period, but to no avail ..., noting the fact that we were always getting promises of imminent reply until it became clear ultimately that it was merely a clear stalling and that they were wasting time on purpose.

- Today we are placing in the hands of public opinion, some of these concerns and inquiries we have made on that date:

1) Leaks reported by the Arab and Western media, which are deliberate leaks serving clear political goals, have enabled some political opponents of employing it tendentiously and executing media and political trials.

2) There is a political period that lasted for years, established in the light of investigation and leaks at the time. False witness statements led to the change of the political power in the country which resulted in the arrest of a number of people for years with no legal process ... And although the detainees were released later, the causes of arrest have not been clarified after as well as the fate of the witnesses who misled the investigation.

3) Why did the investigation take the path of accusing Syria over four years, and turns now into another path?

4) On what security apparatus does the tribunal investigators rely on in Lebanon? If reliance upon it previously has brought the investigation to misleading results, then insisting to rely on it later, means insisting of seeking mechanisms that cant be relied on?

5) And did the tribunal or International Investigation Commission transfer any information to The Hague via "Israel"?

These questions in addition to other questions were laid to tribunal delegates on 30 March 2010 and so far we have not received any answer yet.

Bottom line: We emphasized at the time, a number of things including: the prosecution of false witnesses is the only way to rehabilitate the credibility of the investigation and re-building trust in it, but to no avail, rather what made things worse was theorizing of indirect circumstantial evidence and implying the evidence of simultaneous phone- calls as one of the basic elements for the investigation.

All of this led us to reconsider all of the legal and judicial aspects of this court, which will be presented today in a scientific and objective way so that it would be simplified and understandable, and we put in front of public opinion in Lebanon and the Arab and Islamic worlds.

This material is the product of an integrated effort of a group of specialists of Jurists and it includes seven points, I will present point by point, in collaboration with a man of law, experienced lawyer, former member of the Constitutional Council, veteran and well known, is the judge saleem Juraisati, who will graciously provide the necessary legal clarifications.

Preface

1. The mechanism of the adoption of the International Tribunal overstepped the Lebanese state and its constitution and had been fled by an illegitimate government without being ratified in accordance with the Constitution and within the constitutional framework, and it wasn't signed by His Excellency the President nor by the parliament .

2. The authorities of the president along with the parliament were reduced and confiscated by an illegitimate government in the first place.

3. The establishment of the Court since the beginning was a clear circumvention of the Lebanese and international law and a violation of the sovereignty of Lebanon and its constitutional institutions, and despite this, an illegitimate government got encouragement from the international community to exercise de facto authority. All this in a bid to achieve major political purposes that exceeded the standards of international justice.

4. The system of the tribunal was approved by the will of the international over the national will and the Lebanese constitutional institutions, and came in response to the interests of the major sponsors of the Security Council, apart from the will and interests of the Lebanon and the Lebanese, making the tribunal a tool serving the policies of the influential countries, that always work to settle scores with opposing or objecting parties or forces or states.

Establishing the special tribunal violated the Lebanese constitution

The mechanism of Adoption of the Special Tribunal for Lebanon overstepped the Lebanese state and the Lebanese Constitution, in whole, in particular Article 52 thereof, which gives the president authority to negotiate contracting international agreements within the following context:

1- Stage of initiating negotiation.

2- Cutting the deal, in agreement with the Prime Minister.

3- Referring it to the Cabinet in order to take a decision (the stage procedural agreement).

4- Presenting it to the parliament in case it has terms related to the state finance or in case it can't be revoked year by year. (the Legislative stage)

5- Issuing of the Convention law and publishing it through a decree singed by the President and the Prime Minster.

As For the Special Tribunal for Lebanon, this mechanism has been reduced through:

- Exceeding the president's authorities in launching negotiation in contacting international agreements and then finalizing them with the agreement of the prime minister, and then promulgating and publishing it by a presidential decree after the ratification of the parliament.

- Reducing the authorities of the parliament which was completely absent from this mechanism.

- Adopting the establishing of the tribunal by sending official memos to the secretary general of the U.N by the illegitimate government at that time of "Fouad Al Siniora " requesting a decision from the security council so that the draft agreement between Lebanon and the tribunal system is to be passed without the approval of the specialized Lebanese constitutional authorities.

- The prime minister "Siniora" stated in his letter (May 14, 2007) to the secretary general of the United Nations, that the majority of the parliament expressed their endorsement to the tribunal, the intended was the petition of the House and not the General Assembly of the Council of Representatives, so this is considered a forgery, and pleading to the highest international authority for suspicious internal or regional political purposes. The resolution 1757 indicated in it's provisions quoting Siniora message that the majority of the parliament endorsed the tribunal, and that the Prime Minister pleads that his request to establish the Special tribunal "as a matter of urgency" to be presented to the Security Council.

The Security Council overstepped the Lebanese sovereignty

- Five members out of 15 members of the Security Council did not vote for the resolution 1757 (which established the tribunal under chapter VII), rather they considered that United Nation should not overstep the Lebanese sovereignty, and establishing the tribunal in this formula violated the Lebanese sovereignty.

- That resolution 1757 itself considered, with reference to the briefing by the Legal Counsel Nicolas Michel of the United Nations, that the establishment of the Court through the constitutional process in Lebanon is facing serious obstacles, which confirms that the establishment of the Court is not in accordance with the constitutional mechanism adopted in the adoption of international treaties.

The tribunal Disclaimer of false witnesses

Preface

1- Article 28 of the Statute Annex to resolution 1757 states that the tribunal will adopt the highest international standards in the field of criminal justice, the question is: What kind of justice allows the perjurer to be immune, and fortified to judicial accountability?

2- The Office of the Prosecutor of the Special Tribunal for Lebanon (Mr. Daniel Bellemare) worked on finding legal opinions justifying the failure to prosecute false witnesses and not vice versa, which is a pretty lame justification that clarifies the existence of a prior intention for non-prosecution, while keen to know the truth works on finding justifications that allows his prosecution and not the reverse on the grounds that the accountability of false witnesses carries investigative value that serves exposing the deceivers and beneficiaries, and perhaps the actors too.

The link between the Special tribunal and the U.N probe:

- Stated in the text of resolution 1757: "the Special tribunal begins functioning on a date determined by the Secretary-General in deliberation with the Lebanese Government, taking into account the progress made in the work of the independent international probe", and this is what was originally stated in the text of the agreement annexed to resolution 1757 (Article 19 - Entry into force and commencement of the functioning of the Special Tribunal (.

- The basic system of the tribunal stated that: (article 19): Evidence collected with regard to cases subject to the consideration of the Special Tribunal, prior to the establishment of the Tribunal, by the national authorities of Lebanon or by the International Independent Investigation Commission in accordance with its mandate as set out in Security Council resolution 1595 (2005) and subsequent resolutions, shall be received by the Tribunal. Its admissibility shall be decided by the Chambers pursuant to international standards on collection of evidence.

- This means that the evaluation of the evidence collected by the International Commission of Inquiry is under the purview of the tribunal's chambers and therefore can be attached to the indictments.

- Pursuant to that says Pre-Trial Judge Daniel Fransen in the text of the resolution adopted by him in April 29, 2009 (paragraph 12) that "The Prosecutor considered that the information currently available to him was insufficiently credible to warrant indictment of the persons detained."

- Thereby, It becomes evident, the presence of an organic link between the tribunal's jurisdiction in the case of Hariri's assassination and the pursuit of false witnesses who emerged during the first investigative path, meaning during stage of the working process of the international probe.

Claiming that this file is outside its exclusive jurisdiction

- Rule 152 of Procedure and Evidence Rules (false testimony after oath) describes the crime of false testimony after the oath and determines the proceeding of his trial and sentences(.

- The first rule of the proceedings and evidence states that all the rules enter into effect on march 20th 2009.

The result:

- The prior false testimonies to those rules shall not have their ruling in retro-effect, for the tribunal committed to 20 March 2009 as the date of entry into force of the rules, and ignored the concerned testimonies related to this crime which came at the international investigation prior to this date, and this fragmentation of time is not permissible given the interdependence and inseparability and subservience of the international investigation stages.

- Not only was the Court satisfied with this justification, rather it claimed also that this file is outside its exclusive jurisdiction, according to resolution 1757 (2007) and its annexes, to the prosecution of persons responsible for the assassination of President Hariri and his companions and subsequent attacks, where the Prosecutor invoked that other than crimes provided for in the Statute (Articles 1-2) couldn't be looked into , and that its provisions must be interpreted narrowly (Memorandum of the Attorney General about the tribunal's jurisdiction chapter in the request of General. sayyed, 17 March 2010(.

- Noting that the mandate of this Court includes naturally with an organic link the prosecution of false witnesses because the issue of false witnesses falls naturally in this mandate for the issue is an interceptor by nature.

- However, Bellemare and the judges of the Court and out of evasion of such jurisdiction and looking into this crime holed Rules of Procedure and Evidence.

The tribunal created a new criminal profile for the offense of perjury

- Article 2 of the Statute under the title "the applicable criminal law applicable" states that the reference of the prosecution and punishment of the crimes is the provisions of the Lebanese Penal Code relating to the prosecution and punishment of acts of terrorism, crimes and offenses against life and personal integrity, illicit associations and failure to report crimes and offences, including rules regarding the material elements of the crime, participating in and conspiring to commit.

- Articles 407 to 411 of the Penal Code describes this offense and its sentence, whether the perjury was performed during a criminal investigation or criminal trial, under oath or without it (If it is not under oath before testifying, the sanction is reduced to half only, without any change in the criminal description).

- Therefore, the tribunal's attempt to separate the false testimony under oath (Rule 152) and contempt of court in case of false testimony during an investigation is considered creating a new criminal description for perjury which violates the description contained in Article 408 sanctions (the Lebanese Penal Code).

- All of this was to avoid the responsibility of the prosecution of false witnesses who misled the investigation into this crime.

Preface

It is no longer a secret the media leaks, and official statements which dealt with the international investigation, citing sources in it, since the first hours and weeks of the assassination:

- 'the Kuwaiti Al - Seyassa" on may 21th, 2005
- "the French, le Figaro on August 19th, 2006"
- "the Kuwaiti Al-Seyassa on March 28th 2009".
- "The German Der Speigel, on May 23th, 2009".
- "Ilaaf Site, on July 8th 2009".
- "the French "Le Monde" on February 14th, 2010" and recently the Canadian "CBC" and many other articles which show that it's contents derived from informed sources in the international probe.

Accordingly, these leaks did not occur spontaneously, but were deliberate by members of the international probe, and their objective is the slander and false accusation against the resistance regardless of the timing and content of the indictments, and this is a clear investment of a Judicial movement which is supposed to maintain the presumption of innocence until proven guilty , and is a violation of the principle of confidentiality of the investigation, which is one of the most basic international standards of justice.

The principle of confidentiality of the investigation is the overriding principle in the various laws

- The principle of confidentiality of the investigation is the overriding principle in the various laws of Criminal Procedure, like the principle of the universality of the investigation.

- Article 53 of the Code of Criminal Procedure Lebanese noticed explicitly the principle of confidentiality of the investigation, stipulating that the investigation remains a secret till the case is referred to serve the sentence, except in relation to Indictment, which is a public decision, where who violets the secrecy of the investigation is subject to legal action by the criminal judge and sentenced from one month to one year or fined or by one of these two sentences.

- The violation of the principle of confidentiality of the investigation when adopting the highest standards of international criminal justice invalidates the investigation, particularly if it was used for domestic or regional political purposes that would undermine the civil or regional peace which is inconsistent with the purposes of the Charter of the United Nation.

Confidentiality of the investigation is violated in the international probe

The principle of confidentiality of the investigation is violated in terms of the international probe at many levels:

 The first level: The related Security Council resolutions committed the International Independent Investigation Commission to publish reports on the progress of it's work, and these very reports, whatever the level of discretion is, violates the principle of confidentiality of the investigation, and the first reports of Detlev Mehlis, are best proof of that.

 The second level: Many Arab and foreign newspapers and visual media and Web sites discussed for years, various issues of the investigation, which time showed, that is was derived in terms of content and target from sources of the investigation, and in a clear violation of the confidentiality of the investigation.

 The third level: Many Lebanese, regional and international officials and military leaders in the Zionist entity made statements concerning the content of the upcoming indictment and the date of its issuance.

 The fourth level: The leaks of the some details of the investigation were used for domestic political purposes, thus it occurred as if it was an episode of a great political project. 

Preface

1- According to the Statute of the Special Tribunal for Lebanon, imposed by resolution 1757 (2007) adopted under Chapter VII of the Charter of the United Nations, the judges of the tribunal are the ones who put the rules of procedure and evidence and they adjust them if necessary which prejudices the principle of stability of the procedural laws of criminal force in a criminal trial.

2- Rule 5 of the Rules of Procedure and Evidence allows the judges of the Court themselves to modify these rules. Some adjustments are even possible by seven votes out of eleven, and this marginalizes the role of the Lebanese because the Lebanese judges are only 4, which means they are unable to impose or even prevent the adoption of some modifications, and this in itself opens the discretion and adaptation door, especially when the intelligence and political interferences multiply in the rules of the tribunal work and its procedures, and nobody can say that the tribunal is aloof from it.

3- What are the main gaps in the Rules of Procedure and Evidence؟

Doubt in the validity of the judges to develop and modify the rules

- Doubt begins knowing that the international tribunal judges set up the procedures and evidence rules and, adjust and adapt them at their will, and this is not familiar and unusual in the individual criminal trials. Is there uncertainty larger than knowing that the trial procedures are developed and adapted and adjusted at the discretion of the judges themselves after they are in office and the tribunal starts functioning?

- These rules are adapted from systems of international criminal tribunals established to consider crimes against humanity that took place in the countries of extinct and absent by applicable laws, note that the crimes against humanity is remarkable in the laws of the status of national, which explains the need for rules of procedure and evidence to the courts.

- As for us, we have an applicable law which is the Penal Code and the Code of Criminal Procedure, which guide the judges to the Rules of Procedure and Evidence at the developed or modified (Article 28 of the Statute), whereas it was required that the tribunal shall take the provisions established in the laws mentioned, excluding the death penalty, and not innovating rules of procedure and evidence and without the legal Lebanese provisions.

Rule 20 represents the judicial and political mandate over Lebanon:

Rule 20

Non-compliance by Lebanon with a Tribunal Request or Order

(A) Whenever the Lebanese authorities receive a request for information, cooperation or deferral under Rules 16 and 17, they shall provide such assistance without delay and in accordance with the timeframe specified in the request. Where, within thirty days of notification of the request to the Lebanese authorities, or such longer delay as is provided in the request, such authorities fail to comply with the request, the Parties may seek an order from the Pre-Trial Judge or a Chamber, as appropriate, to the Lebanese authorities to compel the requested assistance. (amended 5 June 2009)

(B) Where the Lebanese authorities receive a summons to appear, a warrant of arrest, a transfer order, an order for the production of documents or information or any order for cooperation issued by the Pre-Trial Judge or a Chamber, they shall provide the requested assistance without delay.

(C) Where the Lebanese authorities fail, within thirty days of notification of an order under paragraphs (A) and (B), to comply with it, the Pre-Trial Judge or a Chamber, as appropriate, may make a finding to that effect. The President shall engage in consultations with the relevant Lebanese authorities with a view to obtaining the required cooperation. If, in the view of the Pre28 Trial Judge or a Chamber, after consultation with the President, a satisfactory response has still not been provided within a reasonable timeframe, the President shall make a judicial finding to that effect and refer the matter to the Security Council for consideration and further action, as the Council deems appropriate.

(D) Unless otherwise indicated, this Rule shall apply to any Tribunal request or order directed to Lebanon pursuant to the Rules. (amended 5 June 2009)

- This article gives the court the right to refer any request or order, addressed to Lebanon was not satisfied by his response, to be referred to the Security Council to review and take subsequent action as it deems appropriate.

- This article puts the Lebanon as a whole under the authority of the Security Council, both political and judicial, which confirms that the International Tribunal is not an independent body but its reference is the Security Council meaning the super powers and its interests. This description applies to the situation in Lebanon under the international political and judicial mandate.

Examples on the gaps that allow the fabrication and disturbance of the investigation

Rule 93

Questioning of Anonymous Witnesses by the Pre-Trial Judge

(A) Where there is:

(i) a serious risk that a witness or a close relative of the witness would lose his life or suffer grave physical or mental harm as a result of his identity being revealed, and measures for the protection of witnesses as provided for in Rule 133 would be insufficient to prevent such danger; or

(ii) (ii) a serious risk that imperative national security interests might be jeopardized should the witness's identity or affiliation be revealed;

at the request of the Prosecutor, the Defence, or a legal representative of a victim participating in proceedings, the Pre-Trial Judge shall question the witness in the absence of the Parties or any legal representative of a victim participating in the proceedings.

(B) The Pre-Trial Judge shall provide the Prosecutor, the Defense, and the legal representatives of victims participating in the proceedings the opportunity to convey questions to the witness without revealing his identity. He shall transmit these questions to the witness himself. The Pre-
Trial Judge may also question the witness proprio motu.

(C) A provisional transcript of the witness's answers shall be given by the Pre-Trial Judge to the Prosecutor, the Defense, and the legal representatives of victims participating in the proceedings. The Pre-Trial Judge may, however, decide to redact from the transcript any answer or part thereof which would reveal or threaten to reveal the identity of the witness. The Prosecutor, the Defense, and any legal representative of a victim participating in the proceedings shall be granted the opportunity to submit additional questions to the Pre-Trial Judge for transmittal to the witness.

(D) The Pre-Trial Judge shall provide a copy of the final transcript to the Prosecutor, the Defense, and the legal representatives of victims participating in the proceedings. He shall also provide them with a copy of a declaration stating his opinion as to the veracity of the witness's statement, as well as the potential for any serious risk resulting from the witness's identity or affiliation being revealed.

- The possibility of questioning a witness without revealing his identity in cases where exposing his identity would cause physical or losing his life in a time witness protection program is not enough, or if there is a serious risk that may affect key national security interests in case the identity of the witness or his affiliation was exposed.

- The amendment of this article permits the pre-trial judge at the request of the Prosecutor or the defense or the legal representative of any affected participant in the proceedings of questioning a witness in secret in the absence of all parties if there was a serious danger affecting key national security interests in the event of disclosure of the identity of the witness or his affiliation.

Rule 96
Public Nature of Pre-Trial Proceedings

(A) Subject to sub-paragraph (B), pre-trial filings, proceedings and orders shall be public, unless otherwise provided by the Rules or decided by the Pre-Trial Judge at the request of a Party. (amended 5 June 2009)

(B) Any filing or order relating to (i) coercive investigative measures, including requests for search warrants, arrest warrants or subpoenas; (ii) a request for confirmation of an indictment; or (iii) an application or notification under Rules 115-119 that is filed under seal by the Prosecutor shall remain under seal for as long as is necessary for the effective conduct of the investigation and/or the protection of any person. (added 5 June 2009)

- This rule allows the tribunal to keep every received document or any order or information regarding the actions that paved the way for the issuance of the indictment "as long as is necessary for the effective conduct of the investigation and/or the protection of any person".

- These procedures include the request of ratifying the indictment presented by the district attorney where it is released and ratified secretly.

Rule 117
Security Interests of States and Other International Entities

(A) Where information in the possession of the Prosecutor is not obtained under or otherwise subject to Rule 118, and its disclosure would ordinarily be required under Rule 110 or 113, but such disclosure may affect the security interests of a State or international entity, the Prosecutor may apply ex parte to the Pre-Trial Judge sitting in camera for an order to be relieved of his obligation to disclose in whole or in part, or subject to counterbalancing measures provided for in Rule 116(A). (amended 5 June 2009)

(B) The Pre-Trial Judge shall notify the Trial Chamber of such application and of any order and decision in this respect.

(C) Rule 116(B), (C), (D) and (E) shall apply mutatis mutandis.

- This rule allows the prosecutor - after taking the permission of the Pre-Trial Judge in Chambers - to maintain confidentiality certain information if reporting it "may affect the security interests of a State or international entity."

- What if the Zionist entity is the state that its security interests must be protected?

- Where is the guarantor of transparency, non-politicization in this area?

- Why is the prosecutor the only one entitled unlike other leaders in Lebanon to hedge higher interests of Lebanon?

Examples on the gaps that may allow the frame up and confusion of the investigation:

Rule 118

Information never Subject to Disclosure without Consent of Provider

(A) Where the Prosecutor is in possession of information which was provided on a confidential basis and which affects the security interests of a State or international entity or an agent thereof, he shall not disclose that information or its origin without the consent of the person or entity providing the information.

(B) Where, in the Prosecutor's view, confidential information provided to him by a person or entity under paragraph (A) contains information referred to in Rule 113, the Prosecutor shall take reasonable steps to obtain the consent of the provider to (i) disclose that information or the fact of its existence to the accused or (ii) provide an alternative form of disclosure such as: identification of new similar information; provision of the information in summarised or redacted form; or stipulation of the relevant facts. If the Prosecutor obtains such consent, the Prosecutor shall make the disclosure that has been consented to without delay.

(C) In the absence of such consent, the Prosecutor shall notify the Pre-Trial Judge of the existence of information for which the Prosecutor has not obtained the provider's consent for disclosure. The notification to the Pre-Trial Judge may be made ex parte and in camera and shall not include (i) the original information provided to the Prosecutor on a confidential basis or (ii) any information concerning or indicating its origin. It shall include (i) an overview of the steps the Prosecutor has taken to obtain the consent of the provider; (ii) the reasons why the information would normally be required to be disclosed pursuant to Rule 113; and (iii) a list of appropriate counterbalancing measures, if any, including amending or withdrawing one or more charges in the indictment. (amended 5 June 2009)

(D) The Pre-Trial Judge shall take any action appropriate under the circumstances, including ordering counterbalancing measures, such as the amendment or withdrawal of one or more charges in the indictment.

(E) If, after obtaining the consent of the person or entity providing the information under paragraph (A), the Prosecutor elects to present as evidence any testimony, document or other information so provided, neither the Pre-Trial Judge nor the Trial Chamber, notwithstanding Rule 165, may order either Party to produce additional evidence received from the person or entity providing the initial information, nor may the Pre-Trial Judge or the Trial Chamber, for the purpose of obtaining such additional evidence, summon that person or a representative of that entity as a witness or order their attendance. Neither the Pre-Trial Judge nor the Trial Chamber may use its power to order the attendance of witnesses or to require production of documents in order to compel the production of such additional evidence.

(F) If the Prosecutor calls a witness to introduce in evidence any information provided under this Rule, neither the Pre-Trial Judge nor the Trial Chamber may compel that witness to answer any question relating to the information or its origin if the witness declines to answer on grounds of confidentiality.

(G) The right of the accused to challenge the evidence presented by the Prosecutor shall remain unaffected, subject only to the limitations contained in paragraphs (E) and (F). (amended 5 June 2009)

(H) The Pre-Trial Judge or the Trial Chamber, as appropriate, may order upon an application by the Defence that, in the interests of justice, the provisions of this Rule shall apply mutatis mutandis to specific information in the possession of the Defence.

(I) Nothing in paragraph (E) and (F) above shall affect the power of the Pre-Trial Judge or the Trial Chamber under Rule 149(D) to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial. (amended 5 June 2009)

(J) The Pre-Trial Judge shall notify the Trial Chamber of any notification under paragraph (C) or application under paragraph (G) and of any order and decision in this respect.

(K) The Pre-Trial Judge's decision shall be subject to appeal. The Appeals Chamber shall rule on such appeal without access to the confidential information or any information concerning or indicating its origin.

The information that is given secretly and that may affect the security of countries or the international community:

1. Not be exposed even to the Pre-Trial Judge only after obtaining the approval of sources (as opposed to the previous rule, the information here and the original sources are both restricted to pre-trial judge).

2. In case of detection is not entitled to request a call to the owner of this information or any representative of him,

3. Also, judge the Pre-Trial or first class Chamber gave no right to request additional evidence from the person or entity providing the information,

4. If the Prosecutor calls as a witness in order to present his information as a proof, judge of the preliminary or the first class Chamber have no right to force him to answer any question related to the information sources or if he refused to answer in order to preserve confidentiality.

5. Upon receipt of the Appeals Chamber in this resource an appealing of the pre-trial judge decision, it shall rule without access to confidential information or any information relating to the source of information.

The content of this article falls in the context of the above meaning asking permission of the provider of the information to be reported. So, what if the provider of this information an agent, conspirator or an enemy, and where the rights of the defense secure?!

- The recent amendments in November 10, 2010 are the most questionable, where Cassese comes out for the first time with an explanatory memorandum based on a binding text, entered to the Rules of Procedure and Evidence under the final amendment in November 10, 2010 (rule 5 - paragraph I), where his note included recognition and error .

- The recognition is that the regulations relating to the criminal international tribunals in the past, starting with the Nuremberg International Military Tribunal, allowed the prosecutor to accept a wide range of written testimonies (which is new evidence, introduced by recent amendments to the Rules of Procedure and Evidence), given that this type of evidence, tends to prove facts forming part of a widespread criminal pattern, meaning that such kind of testimonies, which opposes the principle of oral testimony and its publicly, but may be rightful in the course of crimes against humanity, does not allow, rather make it impossible to listen to a huge number of Witnesses from the families of the victims and so.

- The error is to say that the Lebanese penal system tends to accept written evidence, without subjecting witnesses involved to interrogation. This is twisting of the facts and deliberate confusion between the written testimony and written evidence.

- The assets accredited by the Criminal Court in Lebanon, rules out entirely written testimonies even in the case of deaf or mute witness who has to attend to the court.

In addition, the amendments that referred to the announcement of the indictment, after ratification by the Pre-Trial Judge is no longer a declaration in the legal sense, it is a slander and betrayal, what would rocking the boat between the elements of the nation.

Asking for complete data bases and asking for updating them periodically

Preface

The Prosecutor's office requests complete databases from many security agencies and Lebanese official institutions that affect unduly large segments of the Lebanese people. Such as, for example the data of cellular phone calls and the SMS messages, as he also gets their update on a periodically.

- First: why does the international probe need the data of all the Lebanese people? Why the Update of Communications Data - as a whole - on a regular basis since before the crime (since 2003) and up to the year 2010, ie after 5 years after the crime investigated?

- Second: This issue is very dangerous for it violates Lebanese sovereignty and threatens national security, especially that the tribunal and the team of the Prosecutor specifically have workers of different nationalities (including American, British, German, French, Australian, Pakistan and Kazakhstan ...), that is, it is not known where This data will be and who will be the true beneficiary of it.

- Third: It is a paradox that the Lebanese government legalize such data to the Lebanese security apparatus - which is required within the legal frameworks - and enacts it in full and without any restrictions in the interest of a multinational system.

- What is the legal aspect of such procedures?

Violating the rules of procedure and the understanding memorandum

- Nothing in the rules of procedure and evidence, or even in the various memoranda of understanding signed with Lebanon, requires the Lebanese government to provide such information, both (rules and memorandum) talks about informational cooperation on issues that are relevant to the delegation of the court, and restricted by Article 1 of the statute "persons responsible for the attack, which occurred in February 14, 2005 " and other attacks between 1 October 2004 and 12 December 2005.

- Under Rule 16 of the Rules of Procedure and Evidence as follows: Where it appears to the Prosecutor that an attack that may fall within the jurisdiction of the Tribunal under Article 1 of the Statute is the subject of investigations in, or criminal proceedings in the courts of, Lebanon, the Prosecutor may request the relevant Lebanese authorities to forward all relevant information.

Also reported in a memorandum of understanding signed between the Office of the Prosecutor Bellemare, Minister of Justice in June 2009 as follows: "the Lebanese government ensures that the prosecutor's Office of the Special tribunal is free from any interference during its investigation in Lebanon and that is to provided with all necessary assistance in order to achieve its mandate. This includes providing all documentary, testimonial and physical information and evidence held by the organs, departments and institutions of Lebanon, in issues that are relevant to the delegation of the Special tribunal as soon as possible, and to gather any additional information and evidence, physical evidence and documentary.

Violating the principle of national sovereignty

- The delivery of the complete data Communications and private personal information and private information related to wide range of the Lebanese people would violate the privacy of an entire people under the pretext a individual political crime.

- Privacy and sanctity are public freedoms preserved in the preamble to the constitution and board, and this is flagrant violation of the simplest rules of national sovereignty, where an entire people are revealed to undisciplined parties under the authority of the Lebanese state.

- Such an act is also a violation of the laws that the Constitution referred to regulate what is so-called "fundamental rights" and "public freedoms", especially the law of intercepting intelligence where the competent authorities are asked for permission to intercept specific intelligence in the course of a judicial investigation, through a reasoned judicial decision with a specific topic or person required eavesdropping on his words. In the sense that there isn't an open writ in this area at all, for the law itself is an exception to the general constitutional principles (the basic rights and public freedoms) and every exception may be explained the exclusively and couldn't be expanded.

- The special tribunal for Lebanon violated the principles and the exception.

- It is not latent that exposure of the country began since the Lebanese government's approval to launch fact-finding mission in February 2005 as it permitted officially to the investigators of Peter Fitzgerald and then to the International Independent Investigation Commission represented by Detlev Mehlis, Serge Brammertz, Daniel Bellemare to move in Lebanon and access to documents and data in a manner that any independent state adhering its national sovereignty doesn't allow.

- And the most dangerous is that the fact-finding mission declared the deficiency of the security and judiciary services in Lebanon for establishing a serious investigation, and the international physical security expertise turned to a political accusation to a sovereign State.

- Also, all the States that have been asked to sign cooperation agreements with the court refused to do so in order to preserve national sovereignty, this is not surprising since it exceeds maintaining sovereignty to the fear of accountability, and the evidence is that countries like the United States and Israel, who were remarkably enthusiastic towards the Special Tribunal for Lebanon did not agree on establishing international criminal tribunals institutionalized by international treaties (Treaty of Rome), thus crimes in Guantanamo, Iraq, Afghanistan and elsewhere had the same fate as the Israeli massacres in Lebanon and Palestine, and the validity of the International Criminal Tribunal to look into these crimes was suspended, and everyone knows the fate of the issue of the massacre of Sabra and Shatila in Belgian courts, which used to punish for crimes against humanity , and was modified to avoid accountability.

Adopting circumstantial evidence without the presence of direct witnesses

Preface

The special tribunal for Lebanon tends to adopt circumstantial evidence instead of conclusive evidence given the fact that the conclusive evidence according to the president of the tribunal (Antonio Cassese) is not available in the terror cases due to the difficulty of getting it, as the Prosecutor (Daniel Belmar) assured following up of this path as well, which makes Lebanon, the country that has been denied of internal stability since the year of 2005, a scene of legal and judicial experiments, jurisprudence and innovations.

The circumstantial evidence: A recap

- The circumstantial evidence is: information and testimonies given by a party in a civil or criminal suit allowing reaching conclusions that proves the existence or non-existence of a fact or event.

- It's also known as the indirect evidence.

- They relate to using series of facts to prove a certain reality, unlike the direct evidence that proves the existence of certain the existence without any conclusion or assumption.

The direct evidence: A recap

- The direct evidence is the one that confirms something in a direct way without any mediation, which is the evidence that stands by itself to prove a particular claim.

- For example: seeing the defendant shoot the victim, or get a movie filmed in the place and the details of the incident.

- Therefore, the direct evidence is more objective and conclusive than the circumstantial evidence.

Cassese's Approach to circumstantial evidence:

Cassese looked at length at this context, in his annual report published on March 3, 2010, and we quote for instance:

- "terror crime perpetrators usually organize small secret cells working sometimes secretly, which makes the revealing the identity of certain crime perpetrators very difficult".

- "The modus operandi of various organizations (terrorist) differ to a large extent (from the structure of the state forces or paramilitary groups known to experts), which prevents access to a witness or more of witnesses familiar with the Internal secrets."

- "The Persons involved [...] are led by rooted religious and ideological beliefs [...] and it very difficult to get information from them, rather, how to obtain admissible evidence."

- "The possibility of access to witnesses familiar with the internal secrets is little."

Bellemare's Approach to circumstantial evidence:

- On 30 August 2010 Prosecutor Daniel Bellemare looked in his interview with the site "Now Lebanon" to the circumstantial evidence; he said "circumstantial evidence is a number of little facts that, when you look at them on their own, they might mean nothing. But when you put them together, then the whole picture becomes irrefutable". Bellmare illustrated with an example: "You want to prove that it rained today. You prove that the pavement is wet, you prove that there was nobody who cleaned the street, etc. In itself each of these facts does not mean anything, but if you put them all together, you can conclude at the end of the day that it rained. This is what circumstantial evidence is."

- This presentation confirms the Methodology of proof by declaring a one-way hypothesis, that is, he supposed that it rained and went looking for something to prove it, and this is exactly the methodology adopted by the international investigation into the assassination of Hariri and other issues by one-way.

- One must note that Bellemare himself had already considered (in an earlier statement by his office on August 24, 2010) that what was attained by Hezbollah through evidence and data and indicators on the possibility of an Israeli involvement in the assassination of Hariri was deficient.

- However, if we apply Bellemare's and Cassese's stimulation of the circumstantial evidence we would reach the following conclusion: You want to prove that Israel killed Hariri, and then you prove that the AWACS was in place at the time of the explosion, and prove that the Israeli agents monitored the scene. These facts alone mean nothing, but if they can be collected we can reach to a conclusion that Israel killed Hariri indeed.

- So if we accept hypothetically that is safe to resort to circumstantial evidence, the international investigation have used circumstantial evidence with clear selectively and once again exceeded the most basic standards of international criminal justice.

The circumstantial evidence that can be relied on in the course of a criminal investigation

- Given that the Code of Criminal Procedure did not address the issue of evidence and circumstantial evidence, principles of civil law must be applied in this field pursuant to Article 6, which states follow of the general rules in the Code of Civil Procedure, if there is a lack of laws and other procedural rules.

- Code of Civil Procedure states the following:

- Article 299 c.c.p States that: "The evidence are the derived results, According to the rule of law and the judge's assessment, from a known fact to infer an unknown facts".

- Article 300 c.c.p States that: "The evidence are of two types: Evidence of legal evidence and judicial evidence."

- Article 302 c.c.p States that: "the judicial evidence is evidence not provided for by law, inferred by the judge out of the circumstances and facts of the case, according to his assessment authority".

- It is clear out of these texts as explained by sane legal opinions that the judicial evidence is something that the judge extrapolates from constant facts he has, that is, a conclusion attained not through information or inspection or any other way of direct proving and thus it is considered indirect evidence that requires first the proving of certain facts at the judicial level (which are called Indices), that is not proved for itself but for its reasoning of others.

- And so, it seems that the judicial evidence is based on the Intellectual presumption of the judge, that is to say his own conclusion, where it is considered as the making of this judge as long as the strength of the proof relies on his absolute authority.

- So this evidence, which the judge might be wrong about, is considered in a low position (among the methods of proof) below the status of writing and recognition and oath and the legislator has put it in the same status as the testimony of witnesses, that is, personal evidence.

- Knowing that the testimony of witnesses, is subject to error or false, evidence also as well, as it is indirect evidence and based on intellectual effort of the judge, is also prone to error and humor by phenomenon of fabricating facts that the judge relies on to infer, or due to a unsuccessful elicitation of the judge.
-Thus, if the incident, that the judge inferred the evidence from, is not certainly fixed, but rather just a possible event,it can't serve as a source for such an elicitation.

The Probative value of the Tele - communication evidence

Preface

1- There is a lot of leaks that the international probe relied on the tele- communications evidence and telephone links relating to Synchronization in place among phones suspected of committing the assault and other phones belonging to specific individuals.

2- Some international circles confirmed this, and even added that the tele- communications evidence is the mayor of the expected indictment of the Prosecutor, since he doesn't have any direct witnesses.

3- This explains the insistence of the leaders of the court to theorize circumstantial evidence since communication is a circumstantial evidence.

- The circumstantial evidence - as mentioned - is located in the lower ranks of proof, that they are prone to error or false, and can not be conclusive evidence, as well as it can be refuted by all means of proof.

- And therefore we can't ever rely on such circumstantial evidence in the adoption of the highest standards of international criminal justice, even at the stage of a criminal investigation.

- There has been some talk recently about the telephone calls evidence and the intention of the Prosecutor to rely on it to build its indictment, and that was what Daniel Bellemare himself has hinted to in his last interview with "Now Lebanon" site in August 30, 2010, where he answered a question on whether he considers the telephone calls as conclusive evidence, Bellemare said: "Well, I would call circumstantial evidence conclusive". And this is a clear hint to the validity of the conversations in this context.

- Therefore, to avoid any misleading of public opinion on the solidity of this proof we need to clarify the following:

- The Communications evidence is a circumstantial evidence par excellence, and the experts in the field of communication have proved the existence of a number of ways that allow the manipulation of the data and the fabrication of fake telephone calls, and from different geographical locations.

- Thus, The Communications evidence, which has become clear that the team of the Prosecutor has built its investigation or maybe its indictments based on it, is an invalid evidence in legal terms since the uncertainty of the incident which the judge inferred his evidence on, means that is not valid as a source of elicitation.

Conclusion

- If the international criminal tribunals which deal with crimes committed against humanity is not immune to politicization, with the approval of these tribunal's heads, prosecutors and judges, including Antonio Cassese, when he was president of the tribunal of the territory of the former Yugoslavia and if the international criminal law is still in its infancy, struggling especially in light of the reluctance of some States to contribute to the establishment or strengthening of permanent international criminal tribunals, and in the light of Selectivity, which dominates the work of these tribunals, how can we entrust a special tribunal on the format and content described in this Conference, it is a tribunal of unique characteristics which all the elements of discretion and politicization as proved, starting from its establishment through its work and ending with procedures of investigation and trial in it.

- A politically motivated tribunal that do not adhere to the highest standards of justice, surpassed since its inception, the Lebanese Constitution, and drafted its establishing resolution on international interests that transcended the will and interests of the Lebanese and their legitimate institutions, and reneged on its validity in the prosecution of false witnesses and violated the principle of confidentiality in its investigations, and was mandated to change the Rules of Procedure and Evidence suspiciously and discretionary, and exceeded the limits of its competence in the application of databases and updates, revealing an entire people to various intelligences and international Services and announced its reliance on circumstantial evidence insufficient with no probative value, is ultimately, a tribunal that is not expected to serve justice and right, rather we wont be surprised that it could be a transit arc transit to international mandates on Lebanon and its security, stability and sovereignty.