By Marc Abizeid
On the first day of the defense counsel’s arguments since the Special Tribunal for Lebanon (STL) began its trial Thursday near The Hague, defense lawyer Antoine Korkmaz said that it was impossible to verify the identities of those who used the phones from which tracking data was collected to form the crux of the prosecution’s case.
“The prosecution presents something that remains something like an enigma, pieces of a puzzle chosen and selected to fit a theory they chose to support … while all other theories were abandoned,” he said.
“The so-called scientific foundation presented by the prosecution is in fact totally insignificant. These pieces of the puzzle do not fit. They lack reliability, consistency and credibility.”
Over Thursday and Friday the prosecution argued that tracking data and call logs from mobile phones allegedly used by the suspects showed that they had stalked Hariri for months before the February 14 bombing that killed him and 21 others.
The prosecution also used telecom data to argue that the suspects had framed a man who was broadcast in a video claiming responsibility for the attack on behalf of an unknown jihadist group.
But Korkmaz on Monday reminded the court that the prosecution matched the phones to the suspects by cross sectional analysis and “logical deduction,” and not through witness testimony.
“This is not actual evidence. It is indirect or circumstantial evidence. It is not legally admissible, and does not prove beyond a reasonable doubt,” that the suspects were the ones using the phones in questions.
To build a case “mainly based on the attributions of the phones said to belong to the suspects … shows total absurdity” on the part of the prosecution, he added.
The prosecution charged suspects Mustafa Badreddine, Salim Ayyash, Hussein Oneissi, and Assad Sabra each with two counts of terrorism, and three counts of homicides in 2011.
A fifth man, Hassan Habib Merhi, was charged last year with the same crimes and is expected to have his case merged with the that of the other four. They are all being tried in absentia.
The men are known to have affiliations with the powerful Hezbollah Movement, which has vehemently denied any involvement in the attack. It accuses the STL of being a US-Israeli project designed to discredit the group.
Korkmaz also contested the prosecution’s reliance on two Argentinian experts to conclude that the bomb used to kill Hariri was driven by a suicide bomber.
The Argentinians had reportedly investigated the 1994 bombing of a Jewish community center in Buenos Aires that Israel accused Iran and Hezbollah of carrying out.
Korkmaz said the choice of these investigators to draft the expert report on the Beirut bombing was designed “to confirm the intuitions of the prosecution.”
Moreover all pictures and video of the crime scene at the moment of the explosion are suspiciously absent, he added, despite there having been multiple cameras in the area.
“Even more mysterious, there is no satellite image of the point in the attack,” he said.
“Nothing supports the prosecution’s theory whereby the vehicle seen [in the prosecution’s presentation] is actually the booby trapped vehicle, and nothing enable us to positively support the theory that there was a suicide bomber on the crime scene.”
The prosecution said that between 2.5 to 3 tons of explosives carried by a Mitsubishi truck driven by a suicide bomber was used to carry out the attack.
But Korkmaz said the defense believes the bomb was placed beneath ground.
He also denied that the attack was “terrorism” as defined in a legal sense as an act to foment terror in the population, but rather a political assassination intended only to kill Hariri.
Head of the defense team Francois Roux on Monday delivered a statement to the court on behalf of Merhi’s legal counsel complaining that the defendant’s name was mentioned 124 times as a “co-conspirator” during the prosecution’s two-day opening.
Roux contended that the act breached the rules of procedure, and asked the court not to allow the prosecution to continue using Merhi’s name so long as his legal representatives are not allowed to participate in the trial.
“Here we have [Merhi] who was publicly accused for a day in a half in court… and who cannot defend himself in the view of serious accusations made against him,” Roux said.
“How can one accept that the accused Merhi be accused on a level equal to that of the other four [suspects] without him having his effective rights given?” he asked.
The court had invited Merhi’s legal team to sit in on the prosecution’s opening last week, but rejected to play role as “mute” observer for “appearances” sake, Roux added.
The defense team on Monday also decried what it insinuated were conscious efforts by both the prosecution and authorities in Lebanon to disrupt or delay its access to case files and phone records.
Documents requested by the prosecution from the Lebanese government were promptly delivered, the defense insisted, while its own requests were ignored or delayed, sometimes for months.
And when asked to share its documents, the prosecution resisted, defense lawyer Yasser Hassan said.
“The question that has to be asked is the following: Why did the prosecution use this strategy that hindered the attempts of the defense to get the documents?”
“And why didn’t we receive the Lebanese case file the prosecution had received in 2009 until three year after? We only received them in 2012. This disclosure should have been done without any delays.”
This reduced the time of the defense team to review the material, gave them less time to cross examine witnesses, and made it very difficult to study the technical aspects of the case, he added.
Hassan also protested the prosecution’s description of the defendants as “Shia Muslims” during its opening remarks last week.
“Has there ever been any indictment in any tribunal [in the world] that mentions the suspect’s religion or confession? Do they say ‘this accused Catholic,’ or ‘this accused Protestant, or Buddhist, or even atheist?’”
“I wonder if their religion is part of the crime committed,” he continued.
Hariri’s murder was originally blamed on four Lebanese generals who were close to the Syrian government. Massive street protests in Lebanon coupled with international pressure led President Bashar al-Assad to pull his troops out of the country following a 29-year occupation.
Assad has denied any involvement in the murder, and on Monday accused the STL of being “politicized” during an interview with AFP, insisting it was created to “put pressure on Hezbollah.”
The trial will resume on Wednesday.