Report and analysis concerning the trial and verdict of Samir Geagea and the co-accused in the case of the bombing of the church of Sayyidat Al Najjat, Zouk Mikayel No.3 of 1994.
Table of Content
2.0 CHARGES – INDICTMENT
3.0 POLITICAL AGENDA
4.0 GIRGES EL KHOURY
5.0 ACCUSED IN ABSENTIA
6.0 SAMIR GEAGEA
1.1 Purpose of Paper; This Paper is compiled as a response and was deemed necessary by the writer who acts on behalf of Dr. Geagea for the purpose of highlighting what are believed to be breaches of human rights provisions as they apply per force of international instruments acknowledged by the Republic of Lebanon and for which it has no reciprocal observance, either in its domestic laws, or alternately has failed to implement and accord the provision of those human rights provisions to Dr. Geagea and his co-accused in the trial of the bombing of the Church of Sayyidat Al Najjat (hereafter the Church).
1.2 The position that the writer sees in presenting this paper is not one of commenting specifically on the intricacies of the Lebanese domestic provisions concerning the Criminal Law and its procedure, but rather to highlight the fact that in the performance of the provision of a trial to the accused it was less than a fair trail and in fact constituted a gross abuse of human rights, resulting in a trial which was unfair and a verdict which was unsafe and unsatisfactory.
1.3 The manner and method of the analysis of the verdict is to examine the procedure, the evidence, the findings and or inferences derived therefrom and ultimately the verdict arrived at and assess whether it conformed to the precepts laid down by the international Covenants to which Lebanon is a signatory.
1.4 In addition to acting for Dr. Geagea, the writer has also had the carriage and control of the presentation of representations on behalf of Jean Youssef Chahine, Antonios Obeid and also a familiarity with the defence of Mr. Rushdi Raad as well as acting for Mr. Rafik Al Fahel who was the subject of an extradition request from Sweden to Lebanon which was rejected shortly after the intervention of the writer acting in conjunction with his Swedish lawyers.
1.5 The verdict is a document which is annexed to this submission so that ease of reference may be made to observe and follow the argument in the analysis presented. It is obvious we submit that when one reads the verdict it is capable of being followed as a document deliberative of the material presented and of the conclusions reached from that material applying the law as it purports to do in the circumstances. The legal norms that pertain to an inquisitorial as opposed to an adversarial system are not such that they would render an appreciation of the verdict any less capable of being viewed for the deficiencies that appear therein. In short, the writer is satisfied that in the circumstances regardless of the manner in which the trial proceeded as to inquisitorial or adversarial, there was a gross breach of human rights accorded to each of the accused both those present and in particular those in absentia. The accused in absentia and hereafter to mean the following people unless the context otherwise requires are Antonios Obeid, Rushdi Raad, Jean Chahine, Paul Al Fahel and Rafik Al Fahel.
1.6 The significance of the analysis of the verdict in the manner that it is presented is to highlight the fact that the trial failed to accord the basic minimum in terms of the conditions that have been laid down by the various international instruments and in particular the International Covenant of Civil and Political Rights, Universal Declaration of Human Rights as they apply to the domestic forum and the laws that implement the procedures in such forums.
1.7 There is no doubt in the writer’s opinion that the impetus given to this trial for international condemnation was in no small part brought about by the very pertinent and prompt response by Amnesty International which was critical of the trial of Dr. Geagea, resulting in the conviction for the murder of Mr. Danny Chamoun and his family on 24 June 1995: Amnesty International Index MDE 24 June 1995, Lebanon, “Lebanese Forces Trial Serious Flawed”; see also US Department of State Report on Human Rights practices for 1995 – Lebanon and Amnesty International Report 1995 at p192.
1.8 The method in analysing the verdict as appears herein will be to initially consider the method and the approach of the Judicial Council of Lebanon, (hereafter the Court) and to assess the various procedures that were embarked upon in the deliberation of the Court. Further, there will be an analysis of the material presented as evidence by those accused who were present for the trial and in particular Mr. Malek, Mr. El Khoury and Dr. Geagea. In addition thereto we will also attempt to highlight the gross miscarriage of justice accorded to the accused in absentia and in particular Mr. Obeid, Mr. Chahine and Mr. Raad who all presented affidavit material, duly notarised, and which was summarily rejected out of hand by the Court when the same showed that the accused could not have possibly been involved in the planning, preparation and ultimate commission of the crime as they were all absent from the territory of Lebanon.
2.0 CHARGES – INDICTMENT
2.1 The trial in respect of the case of the bombing of the Church was conducted by the Court commencing in or about November 1994 and concluding on 13 July 1996. The trial was held on a week-end or certainly on a part time basis being convened on a Friday and for half of Saturday. Such a feature is of itself unusual in that a trial of such a major crime where capital punishment is invariably a possible penalty and in all probability would be called for, should be conducted in such a manner is rather remarkable. The ability to concentrate, analyse and present evidence and conduct cross-examination in a coherent and co-ordinate fashion is difficult at the best of times in a trial that runs on a Monday – Friday format with a regularity as to hours and a duration which is to say the least permanent from the start Until the conclusion of the matter. To so hold this trial which was indicted as a crime against the State and an attempt to inflame sectarian violence within Lebanon, after it had just come through a very sad and sordid period of Civil War is bizarre. The trial running from November 1994 until July 1996 was not only marred by the intermittent hearing given to it, but also was featured with lengthy periods of adjournment for no explicable reason and at times the refusal by the Attorneys representing the accused to continue whilst they perceived the treatment of the prisoners by the Court to be less than satisfactory. The detention in a military prison being an example of the complaints registered by defence counsel.
2.2 Initially the observation that has to be made is that the trial by virtue of its intermittent hearings was unsatisfactory with respect to the conduct and presented a prejudice and a disadvantage to the accused and their lawyers to be able to participate in the process by following the evidence, challenging and testing it where necessary and presenting their own cases. Coupled with this are the materials and the findings that I made in my earlier report on the conduct of the trial of both this matter and the trial of Dr. Geagea for the murder of Mr. Danny Chamoun and his family of which Dr. Geagea was found guilty and sentenced to life imprisonment. This trial was running in tandem with the trial the subject of this paper and that also in itself constituted a gross abuse by having to meet two cases of a capital nature, together with sundry offences associated therewith, such as possession of firearms and weapons and/or breaches of public order. The joinder of several matters on one indictment may well be justifiable in respect of the particular crime at hand, but where there is a trial of two major matters and the indictments for both matters are tried jointly, it represents a very difficult task for any trial lawyer. In particular in this matter, that is to say the trial in question and the case concerning the Chamoun Family, both trials were conducted simultaneously but on alternate week-ends from the Friday extending to the Saturday by different prosecutors, whereas the defence teams were invariably the same for reasons of economy and logistics of presenting and meeting the material.
2.3 At the outset it must be said that the accused who were present are referred to in the verdict as are the accused who were absent. Those accused who were absent were as regards Mr. Obeid and Mr. Chahine, situated in Australia, the former being an Australian citizen, while the later is a person seeking refugee status. As regards Mr. Raad, he is a citizen of Canada and the A1 Fahel brothers are residents of Sweden and in the case of Mr. Rafik A1 Fahel, he has been granted asylum and consequently citizenship. It is my understanding that his citizenship came swiftly on the refusal of the request for extradition by the Lebanese authorities.
2.4 No formal request was made to my knowledge to extradite either Mr. Obeid or Mr. Chahine from Australia and I know of no formal extradition being applied for or for that matter entertained by the Canadian Government in respect of Mr. Raad.
2.5 The prosecution of the accused in respect of the case of the Church, was as a result of a decree setting up the investigation No. 4835 and dated 2 March 1994~which referred the matter to the Court. The case’s significance is not in anyway undermined by the fact that it highlighted apart from the murder of the individual worshipers and desecration of the Church, it was referred to as an assault on the States internal security and public safety and sought to bring to justice all of the perpetrators who either participated, instigated or interfered in the bombing in any capacity. Not unnaturally the accessorial liability of all who were responsible in anyway shape or form was cast as wide as possible in terms of the drag net that looked for suspects.
2.6 The judicial investigator who was appointed to review the material was Judge Joseph Freiha. His deliberations and investigations resulted in an indictment, which was dated 13 June 1994 and constituted the basis for the presentation of the case before the Court. The indictment statement that also emanated from the office of the prosecutor was issued on 16 June 1996 which is referred to in the Courts judgment.
2.7 The indictments as presented charged and sought to portray Dr. Geagea as the principal, accountable for the perpetration of the crime of the bombing of the Church as its planner, the one who ordered the execution thereof and was a participant in concealing the perpetrators who acted under his orders and enabled them to flee from justice. The motive for the bombing was expressed to be an attempt to bring about an alteration to the Constitution of the country for which charges were laid pursuant to articles 30, 308-315 of Punitive Act as well as article 549 and 549 – 201 of Act 11.1.1958. In addition the accused Obeid, Raad, Chahine and E1 Khoury, were each charged pursuant to those provisions excepting article 30 of the Punitive Act. With respect to Mr. Malek, he was charged with Dr. Geagea as participating in the agenda and further that he acquired military weapons taking part in concealing the same ensuring there distribution thereby breaching articles 301 and 308-315 together with article 219 of the Punitive Act as well as Act 11.1.1958.
2.8 As to the complicity of the A1 Fahel brothers, they also were charged with respect to offences pursuant to articles 301 and 308-315 together with article 219 of the Punitive Act and Act 11.1.1958. In addition each of the accused who are referred to above were all charged pursuant to article 72 of the Weapons Act. The accused were indicted on 16 June 1994 after a period of arrest, interrogation and detention which I am informed and verily believe was in the case of Dr. Geagea accompanied by torture, and in particular to Mr. E1 Khoury. I understand that a similar complaint was also made by Mr. Malek.
2.9 Upon the initial presentation of the indictment it was noted that there were defendants, viz. Atonios Obeid, Rushdi Raad, Jean Chahine, Paul A1 Fahel and Rafik A1 Fahel, who the judgment refers to as “declining to appear at the Council” It is my understanding that rather than declining to appear, they were not sought with a view to ensuring their appearance and in particular feared their ability to obtain a fair and just trial, and in the case of Mr. Antonios Obeid, he had his passport detained at the Lebanese Consulate in Sydney on making inquiries of the charges laid against him. The subterfuge given by the consulate was that they were attempting to investigate his passport validity and having taken it into their possession refused to give it back. Similarly Mr. Chahine felt no confidence in so submitting himself when he saw how Mr. Obeid was treated. Mr. Chahine also made a complaint as to the loss of his passport through the offices of the Lebanese Consulate in Sydney.
2.10 The Court insofar as it purported to give them a concession to attend the trial, thereafter deemed them to be escapees and or fugitives from justice and then tried them in their absence on the basis that they did not comply with a request in the form of a concession to attend and appear in the hearing of the matter.
2.11 In these circumstances, justifiably in view of the treatment by the Lebanese Consulate in Sydney, the gravity of the allegations bearing in mind that the accused tried in absentia were as their defence sought to show, absent from the jurisdiction at the critical times of the alleged complicity by themselves, very much in fear of their safety and apprehensive that they would receive a fair trail. No arrest having been issued for them, but rather a concession given to enable them to attend in the circumstances they not unnaturally chose to preserve their life and liberty and declined to respond to any request of the Lebanese Government and or the Court to return to Lebanon, this was very much so compounded by the fact that the withdrawal of the passports would ensure that they had no chance of having their mobility for international travel restored once they were in Lebanon.
2.12 Similarly the requests made of the A1 Fahei brothers Were not pursued with any vigour until it was sought to have Mr. E1 Khoury’s retraction of his confession put into doubt by the attempted extradition by Mr. Rafik A1 Fahel from Sweden which was refused and which saw the trial proceed thereafter to a Conviction of Mr. El Khoury despite his retraction of the alleged confession and his allegations of torture.
2.13 The position concerning Mr. Raad in Canada is even more tenuous bearing in mind that he had left Lebanon several years prior to the bombing of the Church and which was well documented by the Canadian authorities, consideration of which will be given in this report to the particularmaterial to show that he was conclusively nowhere :near Lebanon at the time of the alleged perpetration of this offence and even in its planning stages, but was allegedly placed in and around Lebanon, with very detailed descriptions of his alleged complicity in the crime.
2.14 In any event all accused having been indicted, those present were tried in the manner referred to above and those who declined the invitation to appear where tried in their absence. The manner in which the trial was conducted is given at page 4 of the Judgment where it is recited that the preliminary and preparatory investigation minutes, together with the case documents, there tabling for discussions, the interrogations of the Defendants, and the hearing or the witnesses statements, together with summing up by the prosecution and the submissions of the defence lawyers, where all conducted and ultimately deliberated on by the Court arriving at its verdict, recorded in the Judgment and sentence pronounced on each of the accused at pp. 111-114.
3.0 POLITICAL AGENDA
3.1 That the highest Court in Lebanon should allow itself to become a conduit for political parlance and propaganda in of all matters a trial for crimes against the State carrying penalties as serious as capital punishment is tragic.
3.2 This occurred in the trial of the accused and is borne out in the references made by the Court at pp. 6/7 where the Court referred to Lebanon as a civilised country, taking ‘pride in the coexistence among all its citizens and showing the world that Lebanon was a country of great example as a tolerant nation of all who resided within her borders.
3.3 The Court thereafter refereed to the State of Israel as “the Israeli enemy, which has evil intentions for Lebanon’s success, either in future or economic progress, so it worked to destroy Lebanon, with the assistance of professional agents and, for the abortion of Lebanon security as a result of which the useless war took place.” That a Court should condescend to such language and to refer to neighbouring sovereign States in such a manner is both tragic and regrettable where at heart and at issue is the attainment of justice in the contest between the State and the accused to ensure that the path to truth is trod carefully and surely. To allow the puerile proliferation of politics into such a consideration in the reference made to Israel and the intentions that were perceived by the Court to be the destruction of the Lebanese State by Israel whether founded or unfounded, has no place in a Court of law.
3.4. This was the template for the consideration of the matters against each of the accused, both present and in absentia and seen as the motive for bringing about the possession, distribution and use of the weapons, together with the planting of the bomb.
3.5 Throughout the judgment there are many references to the accused, in particular, Mr. E1 Khoury, Dr. Geagea (seen on an Israeli Warship) and Mr Chahine, Mr Obeid and Mr. Raad, all meeting at hotels and/or in establishments in the State of Israel. Also there are references to the arranging of visas at frontier zones controlled by Israel and the admiration of the Israeli State and its language by Mr Khoury. To leave nothing out of the epic proportions within which the State of Israel’s involvement is seen, there also crept into the judgment the alleged romance between Mr E1 Khoury and a Miss Oria, (an Israeli Agent), seen particularly as a development on the “human side”, within the matrix of the facts, acts and circumstances.
3.6 Each and every sighting of the accused in the State of Israel, together with the particular inferences and ultimate findings of fact derived from such references, were remarkably unsubstantiated by documentary material. They were also pictured as devoid of factual corroboration, and in Mr E1 Khoury’s case were extracted as a result of being obtained under torture in confessions obtained from him which were later retracted. As to the sighting of Mr Raad, Mr Obeid and Mr Chahine, each of these references were similarly lacking in corroborative confirmation.
3.7 The presence of Israel’s involvement was juxtaposed as one of the reasons for the cancellation of the visit of His Holiness. It was also cited as the continuing festering cause for dissension in the stability and attainment of peace in Lebanon.
3.8 There was also reference to the concept of the Canton system that is operative in Switzerland and much approved by Dr. Geagea as a possible future model for Lebanon. This was refereed to by the Court as the “Mini-State Concept”, and was if not explicitly then certainly inferentially derided and adds to the political prose which literally abounds in the judgment and in particular is condemnatory of the accused, Dr. Geagea, and his role as a Christian leader which is perceived as nothing more than a nuisance value by the Court and one responsible for national division and turmoil.
3.9 The Court in giving in to what is obviously a submission which ignores facts and refuses to look at the evidence, becomes a proselyte of the political parody and the Judges in turn regrettably become puppets in the theatre of a trial which is seeking to make excuses for the inability to achieve a just and sensible political solution to a nation’s woes. In turn it is a reflex response to those who ultimately control and administer Lebanon and are hell bent on repressing the expression of freedom of speech and seek to emasculate those who differ with the regime.
3.10 Such an intrusion into politics abrogates utterly and convincingly any attempt to administer justice and achieve a fair trial between the interests of the State and the accused. It impacts on article six of the International Covenant on Civil and Political Rights (hereafter ICCPR), in particular that the death penalty could be imposed is in breach of Part III, article 6(2) and also is in breach of article 7, where it could be established that a person was tortured or subjected to cruel, inhuman or degrading treatment or punishment. This must be said of the treatment of Mr El Khoury as it emerged in the course of the trial.
3.11 In addition to the failure by the Court to implement article 6 of Part III of the ICCPR it also infringed, we would submit, the fact that the penalty was imposed in breach of the Covenants injunction that no such penalty was to be passed, unless it was pursuant to a final judgment. This could never be the case in question because the final judgment was incapable of review by an Appellate Court, as the Judicial Council is the Supreme Court from which there is no appeal, and thus it is in breach of article 14 (5) of the ICCPR.
3.12 It is now proposed to consider each of the cases of the accused and in such detail as is necessary to exemplify the propositions advanced and to highlight the considerations that we say are applicable to the matters at hand.
4.0 GIRGES EL KHOURY
4.1 The prime sources of evidence against Mr. El Khoury were as follows:
a). His alleged confession and an enactment of the crime, 28 March 1994, which he did in person at the Chief of Staff Building together with drawings that he made placing the Defendants’ in absentia at that area.
b). Evidence derived from his frequent visits to Israel – seven.
c). The involvement with a girl called, Manassa, also known as Ms Vera Oria and;
d). The evidence of contradictions which the accused gave in response to questions in the interrogatory procedures and in the course of final investigations conducted prior to the trial Generally.
4.2 The defence of Mr E1 Khoury was given at pp. 19-26.
4.3 There were both oral and written submissions prepared on this Defendant’s behalf.
4.4 Essentially the circumstances in which Mr. El Khoury found himself were as a result of the bombing of the Church, he became a suspect, but for no particular reason. He was alleged to have had contacts with Israel, and when his family where set upon by the authorities, he came out of hiding and was taken into custody. The custody that he was taken into was of a military and not civil nature, and hence was highlighted by his defence as being in breach of the provisions and violated articles 47 & 99 of the Criminal Trials Act and accordingly should have been annulled as a defective action and/or step taken in the prosecution of Mr. E1 Khoury pursuant to article 340 of the Criminal Trials Act. The investigation was of itself conducted at a military camp/establishment, and was tainted by the subjection of Mr. El Khoury to psychological, physical and extreme bouts of mental and physical violence in an effort to extract a confession -which was ultimately successful – but which was finally retracted when Mr. E1 Khoury would have confidently assumed that a Court of law would have assessed his retraction for what it was worth, namely an explanation of the response that he gave under severe mental and physical pressure and which he sought to retract at the first available public opportunity. He was denied his lawyer or the presence of a legal adviser in violation of article 71, such exclusion of a legal representative was to enable the authorities to obtain a confession and each in turn, that is to say the civil prosecutorial authority and the military authority, competed against each other to obtain such a confession.
4.5 The contradictions that were utilised by the Court ultimately to convict Mr. E1 Khoury were to say the least ridiculous. They refer to the fact that no one can act on a confession as conclusive and in accordance with the manner in which it is treated by the Lebanese domestic criminal law, unless it is supported by other evidence, i.e., corroborated. That such is a universal application of the criminal law in any system, whether it is adversarial or inquisitorial, is a trite observation. The defence sought to set up the fact that the accused would have hardly had the facility and/or the mobility to travel to Israel on the numerous occasions that they allege he said he did, and more particularly, that his confession was to be seen for what it was, namely, a matter that was extracted by torture and/or physical abuse and violence because of the fact that in the circumstance the presence of Raad, Obeid and Chahine was physically impossible both as to the frequency of sightings and the localities in question in view of the affidavit evidence presented by each of those co-accused and which were relied upon by this Defendant as well as in Dr. Geagea’s case.
4.6 An enactment – by a person in custody, and one who is allegedly being tortured is hardly surprising. That he should then carry on with the thespian portrayal of not only acting out the scenario, but, resorting to the graphic and pictorial depiction of such events and referring to other incidents which he put in a diagram and signed, is hardly convincing and/or corroborative, even though it was accepted as being the basic requirement by the Court. In other words to hold up what is the principle, and then find that the same Zhad been complied with on the most pathetic of material, and implausibly so, is to make a mockery of justice as the judicial council did in the case at bar. The reliance on Ms Antoinette Chahine, whose whereabouts is still unknown, having been taken into custody and held without trial and charge being preferred against her, (sister of co-accused Jean Chahine) is equally incapable we would submit, of supporting the States ultimate findings. In fact her evidence was in support of Mr El Khoury and her brother that they were not in Lebanon, ie, the brother and Mr E1 Khoury, as referred to and that Mr Chahine was for some time and more particularly at the pertinent times, in Cyprus, which he deposed to in his affidavit.
4.7 Mr. E1 Khoury’s position was that effectively he had been tortured, and he maintained the same at the trial, and the medical evidence was inconclusive to refute such claims. That he did not come to trial and was not publicly arraigned or seen from the time Of his arrest in March 1994 until the trial in November 1994 is ample evidence of the fact that there was both opportunity and motive to enable the carrying out of the torture at the military establishment of Yarzi as was maintained and occurred. The medical evidence to refute such claims as advanced by the State was both mediocre and devoid of any documentary proof corroborating the same. No medical records and/or independent examination by a doctor of the accused’s choice or alternatively, a doctor agreed upon by both parties mutually, was made available to refute convincingly the claims of torture which were maintained and adhered to by Mr. El Khoury throughout the trial. The Court dealt with Mr. El Khoury’s defence at pp. 66 – 81. It was to say the least disheartening in its attempt to treat the defence case with any respect. The Court relied on, and gave evidence to the alleged involvement by Mr. E1 Khoury with the State of Israel, and in particular his enlisting in its Intelligence Service. Despite the fact that he had alibi material presented from the French Cultural Centre for his whereabouts on certain occasions, this was disregarded. Pathetic and desperate were the attempts to stretch tenuous facts into ultimate findings can be seen from the use of identikit pictures of the co-accused drawn by this accused and in particular putting glasses on Mr. Raad who I am informed and verily believe, having met the person and having spoken to him on lengthy occasions in Montreal where he is presently residing, that he has never worn glasses in his life. To so say that because he put glasses on him in the identikit picture that convincingly showed that he knew Mr. Rushdi Raad is a bizarre example of the judicial process gone askew. It is hardly an example of inductive reasoning. The alleged depiction of the Church and its details as drawn by this accused and the absence between what it was like before and after the bombing are hardly capable, bearing in mind the scenario in which they came about (torture and he being in custody without bail and Without any prospect of being placed in a civilian establishment as opposed to a military establishment), would hardly lend credence as pieces of evidence that are sufficiently corroborative, both independently and of their own weight. Also relied upon was the evidence of his brother, Anwar. El. Khoury and his relationship with the Israeli authorities and his acquaintance with Ms Vera Oria and most convincingly the eventual “development of a love affair between them” – p. 71. Coupled with this is his alleged flight and his disappearance. His response to this was, in view of the focus of attention of the government on former Lebanese Forces members, puts his flight as both understandable and a rationale response in the circumstances. This of course was not so regarded and more particularly the Court in attempting to analyse the evidence at pp. 72 – 81, systematically, clumsily but convincingly tore out the logic and rationale of each and every proposition that was posited by the defence, and in particular, where evidence supported the defence it was ridiculed and reduced with comments which rendered the assessment of it absurd on the part of the Court, in their desperate efforts to reduce his defence thus making a mockery of it in its ultimate rejection.
4.8 The confession was attended by torture and gross abuse of the position that the authorities were in having the care and custody of the Defendant as their prisoner pending investigation and ultimately being charged. The report of Dr Kahwahji, who conducted a bedside examination of this accused, surprisingly did not find, “any traces of bashing or torture”. p.72. Remarkably Dr Kahwahji found that his answers and his mental status were both sound and his detention during the remaining period and in particular his health during that detention Was without any remarkable change. Incidentally, his psychological status remained calm as at the initial stages of the examination when he was first taken into custody, as compared to the sighting of him in the video when played before the Court, concerning his enactment of the scenario.
4.9 The incredulity of the Judicial Council is only outdone by their attempt to belie what were the facts and circumstances made in support of the allegation of torture and ill treatment. Article 7 of Part III of ICCPR specifically injuncts the subjection to torture or to cruel, inhuman or degrading treatment or punishment. There was a gross breach if one accepts Mr. E1 Khoury’s testimony and the submissions made by his lawyers who were both responsible and admirably competent in the presentation of his case. The claim by the defence was rejected out of hand by the Court without any support both rational and/or logical relying on any corroborative material to so disavow the defence claim.
4.10 It is often asserted that assaults on the inherent dignity of human beings as recognised as being relevant to the stability of international order. It follows that a profound transformation of international relations has been heralded with profound transformation of International Law, because ultimately, the rules of behaviour of society and the aims in which they are so regulated has seen the evolution of humanitarian law rules to reduce and eradicate what occurred to Mr. El Khoury.
4.11 He is a prisoner within the term, as has evolved in International Law, as a person who is unable to remove themselves from the orbit of official action and abuse. The concept of torture has been one which traditionally is referred to as a method of arriving at the truth, of determining responsibility for offences by means of eliciting confessions or other information. Less obviously, it has also become a method of inspiring fear among the population at large, or specific segments of it. In the Universal Declaration of Human Rights, it provides that:
a). Article 3. Everyone has the right, liberty and security of person.
b). Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
c). Article 9. No one shall be subject to arbitrary arrest or detention…
4.12 Each of these provisions was so breached in the case of Mr. E1 Khoury and in that regard with respect to all Defendants who were in custody.
4.13 Mr. E1 Khoury is seen as a typical victim of torture, in other words, he is a political opponent of the government – violent or non-violent, a real force for change or a minor irritant to the regime, seized by the security forces. These as in the case in question may be military or police (or both acting together) but will more commonly be the military, who may or may not be in uniform. Their vehicles may or may not have number plates and frequently, although not inevitably, the government of the State concerned will have been ousted unconstitutionally by the armed forces, which can then operate free of restraint. They may well be there at the grace and favour of an occupying force, ever present, but seemingly benign in its attendance to supervising the administration, but without being seen to take an active part.
4.14 The scenario as occurred to Mr. E1 Khoury and for that matter Dr. Geagea and Mr. Malek, is both Composite and consistent of what occurs generally in barbaric regimes where the administration of justice is nothing more than a sinecure to the ultimate aims of the State and is used as a perfidious and political panacea albeit an adjunct as a piece of panoply.
4.15 Invariably, once seized, a prisoner is transported to a place of detention, which may be a police station, or in this case an army barracks where the torture and the ill-treatment will take place unless already started during the transportation. The methods are as infinite as the reaches of the human imagination, but among the more common are prolonged beatings, especially on the soles of the feet or genitals, immersion in excrement, near-asphyxiation, violent sexual assault, and the administering of electrical shocks. More sophisticated in that they leave little physical trace. Under psychological techniques, deprivation of light (or of darkness), deprivation of sound, of sleep, general disorientation, threats of mutilation or death, mock execution and most powerful of all, in many cases, the threat of physical abuse would be extended to persons close to the prisoner.
4.16 Torture is usually aimed at securing information about the activities of the victim, or persons connected with the victim. The activities in question may be thought to relate to the commission of criminal offences (with or without political connections), or the planned commission of such offences, or simply to political dissent that the authorities are not prepared to tolerate. The torture is also often aimed at securing confessions to criminal acts. Another purpose is the intimidation of the victim and others, possibly even society as a whole, so as to deter people from undertaking an activity that could risk their falling into the hands of the authorities.
4.17 Torture is usually carried out while the victim is excluded from any contact with the outside world. Family, doctor, lawyer, and so on – a condition known as detention incommunicado. The period is often prolonged, measured in weeks and months rather than in days, (though, of course, a lot of suffering maybe inflicted in a period of days even hours). The incommunicado detention may, like the torture itself, be frankly illegal under the law of the country in question. Sometimes the authorities will facilitate the perpetration of torture by declaring a state of siege or emergency in order to permit the suspension of legal guarantees that could have acted as checks.
4.18 That each of the above items, as indicia of a repressive regime can be applied to the Lebanese Government is both apt and sound on instructions received by me from refugees presently situated in Canada, America, Australia and the United Kingdom. That I have participated in such refugee hearings and prepared a report which has been accepted by authorities in Sweden, Australia and Canada and have given evidence in the United Kingdom with a decision pending, is confirmatory, sufficient for me to make the observations that I do that I accept what Mr El Khoury has said and in particular having spoken to him briefly and under pain of punishment on the basis that soldiers would have if they had found me so talking to him, physically removed me, from the precincts of the Court, enables me sufficiently to believe what his lawyers put on instructions and also with respect to the Defendant himself.
4.19 Analysing the reasons for the rejection of the claims made by this accused by the Court, leads me to the inevitable conclusion that the just and rational approach to justice, objective and devoid of sympathy and/or political preference was not arrived at by the Court in the consideration of Mr El Khoury’s case.
4.20 To say that he was motivated by instinct to survive, the death penalty and hence make the confessions he did, is to answer the obvious, that under the fear of execution and the arbitrary denial of just and due process together with the physical and mental torture exacted on him, was the real motive for the confessions initially, and then their retraction. Why otherwise would he be so prepared to retract a confession that would enable and assure him of his preservation of life and possible early restoration of liberty? To so publicly decry the confession as obtained by torture and fraud is to fly in the face of logic and reason other than it was both a false and wrongly obtained confession.
4.21 To display him as a spy for both Israel and the Lebanese Forces, and thus an enemy of the State is only to appease the political politburo and to become a proselyte of regimes that occupy Lebanon and seek to have Lebanon bend to their will in contra distinction to their acclaimed sovereign status and democratic ideals. It indeed makes hollow and a mockery of the remarks of the Judicial Council that Lebanon is both free and democratic where a just and fair trial is available to all who Come before the Courts. See p. 6.
4.22 The Court certainly gave some emphasis and placed a degree of focus on the motive for retracting his confession at p. 79. It is to be noted that Mr E1 Khoury’s confession was retracted on the first opportunity after the Indictment Decree handed down on 13 June 1994, and prior to him being a witness in the hearing of an associated case which was to commence on 23 June 1994, in relation to the bombing of a building known as A1 Kataeb House. That it was prompt and that he was consistent in denouncing the confession cannot be argued with. That the Judicial Council did not give such emphasis and consider such retraction on other than a nonsensical basis, is also apparent. In short, their ultimate conclusion was as follows:
“The Council remained confident that Girges’ confessions in regard to the main points of the case were true and that these confessions with its supportive elements are enough to prove the actions attributed to Girges, which appear in the Chapter of Facts.” P.80
Those facts were his complicity as an agent of enemies both within and outside the State and the fact that he took money for his intelligence service and was prepared to denounce the State and act against it. All ethereal and fanciful and more particularly obnoxious to the cause of attaining justice as was incumbent on the Judicial Council.
4.23 When the template of his conspiratorial co-operation and the acts in furtherance of the conspiracy and the perpetration of the matters in question are taken into account and in particular looked at as regards the co-ordination between him and the accused in absentia and their defences are also under the microscope, it is patently obvious that the following propositions are available:
i) He could not have been with the co-accused, especially those in absentia on the days and in the periods in question or at the locations;
ii) That if he so maintained it, bearing in mind that he was taken into detention, it was in circumstances where he was and is to be regarded as a victim of a miscarriage of justice on the basis that the confession obtained from him was and should be seen for what it was, namely, no confession at all, or certainly not voluntarily given;
iii) That there is both a reasonable and rationale explanation for the confession and its extraction, and this in turn leads to a doubt when compared to the lack of presence of the co-accused as against the intimately particular and meticulous narration of their involvement and presence, plausibly explained away by reason of the extraction of the confession -thus leaving inevitably the conclusion that the doubt must be not only in favour of this accused, but his co-accused, including Dr. Geagea and Mr. Malek, and the accused in absentia.
4.24 The Judicial Council in failing to appreciate the Process and in failing to accord to the affidavit material the force and the tenor on which they were sworn have denied this accused the ability to present his defence and thereby denied him a fair and just trial and insofar as their verdict is incapable of review by a High Court in breach of article 14 (5) of ICCPR has rendered the verdict unsafe and unsatisfactory for the reason that it was so unsafe and so unsatisfactory in being arrived at and insofar as it is allowed to remain so by the denial of a review of a appellate authority is equally offensive to the notions of justice and the international obligations to which Lebanon is a signatory.
5.0 ACCUSED IN ABSENTIA
5.1 The accused in absentia are Jean Chahine, Antonios Obeid and Rushdi Raad and the A1 Fahel brothers.
5.2 Affidavit evidence was presented and compiled by myself in respect of Obeid and Chahine and representations were made on behalf of Al Fahel in Sweden and I also liaised with Rushdi Raad’s lawyers in Canada and he himself personally as to the preparation of affidavit material by him and its provision to the judicial authorities and the prosecution in Lebanon.
5.3 That the dissemination of the material was both universal, that is to both the State and prosecutor and to each of the other Defendants and that it was open, as confirmatory with corroborative material annexed thereto is to underestimate the extent to which the preparations were made and attended to in the provision of the material in question. This is in no way, in any sense to justify the material or the manner or the state of it as presented, but rather to indicate that what was made available was done with the best possible resources co-ordinated and provided bearing in mind there were time constraints in the provision of this material and its consideration.
5.4 The Judicial Council’s complaint that no one came to support the affidavit material is absurd for these reasons:
a) Insofar as I was concerned, I was denied and still am denied a visa to attend and visit Lebanon for any purpose, so how could I having applied for a visa in March 1995 and still have unanswered my application for such a visa (although I am informed and verily believe on reliable sources that the same is denied to me as I am on a black list and in fact am referred to as No. 3 on that list). How could I hope to attend and participate in the forensic process?
b) The treatment afforded to Obeid and Chahine by the deprivation of their passports and the ill-treatment afforded to their co-accused, would leave them with no hope or without any degree of optimism that they would not also be treated in a like manner must of itself weigh on their minds as to why they would not seek to surrender themselves, and;
c) The treatment of the affidavit material in the judgment and in particular the conscious disregard to refer to the itemisation of the matters in the affidavit, to so regard it as, if not directly then inferentially as a fraud, and to denounce the material without referring to it in particular manner but to generally disclaim it as opposed to the meticulous treatment of the prosecution’s evidence, is to highlight the dishonesty that permeated the judicial approach and ultimate conclusion that was arrived at.
5.5 It is apparent in the course of the judgment that all defendants in absentia were regarded as one category and so treated in the judgment. The “infamous three” – Obeid, Raad and Chahine were all regarded as escapees from justice and it was held against them that as they had not seen fit to discuss or offer an opportunity for the discussion of their evidence with the authorities then they would be tried in their absence. Needless to say it was akin to the vernacular expression, “shooting fish in a barrel” It had all of the trappings of what we refer to in Australia as a “Kangaroo Court”. It was both a farce and a mockery and constituted nothing more than a rubber stamp insofar as they were convicted.
5.6 Of special interest and when read and reflected on in utter disbelief, is the comment and the finding of the Court at page 85, where it held that the fact that there were no exits visas in the relevant passports meant, that that of itself did not mean that false passports were used or that the countries in question were not efficient enough in maintaining exit records. The Republic of Cyprus, and the situation pertaining in Canada, Sweden and Australia are sufficient to my knowledge to indicate that the migration and immigration procedures are so monitored and of such sophistication that the obtaining of a false passport, whilst not out of the question, would make it virtually impossible for either of these defendants. More particularly, the records of the governments in question, and when one utilises reference to the affidavits in question for each of the clients that I was privy to, it is patently obvious that the reference by the Judicial Council that, “both cases could not constitute a definite evidence that the person has actually remained in that country, because of his passport and the stamps appearing on it.” – P.85. It is regrettable that judicial expositions of this nature are needed to, to resort to imposing a decision that is neither based in logic nor reason. Equally to the point that nowhere in the affidavit material is any fact or matter addressed concerning the issues such as Mr Chahine residing in a unit in Cyprus and the further affidavit by his landlord, confirming the same. Likewise with Mr Raad, running a business in Canada and Mr Obeid conducting transactions in Australia, significantly, buying a home, attending doctors and generally being in and with his family, having entered Australia in June 1993 and not having gone from its shores. How then does the Judicial Council explain that the persons abroad remained unreliable evidence when either for reasons of their personal safety or in my case the fact that I was not able to be given a visa, all render the matter of the need for attendance hypocritical where it is relied on for the need to give evidence viva voce.
5.7 The percolation of this denial and rejection of the alibi material in relation to the persons referred to is equally seen in the rejection of it in Mr E1 Khoury’s defence. The Court was adamant that it would rely on what had been reported in Mr. E1 Khoury’s confessions against the defendants, as long as the confessions were convincing in their details. To be convincing is one thing To be coerced and lacking in corroboration is another and this was not averted to by the Court, rather they held the view that: “…[it] consolidated by the factual evidence derived from the past dealings amongst them all” – P.86.
5.8 In the circumstances it is absolutely imperative that in any review of the verdicts against the gentlemen concerned in this section of my report, it must be noted that no opportunity was given nor any gesture made to take the evidence on commission or alternately to have whatever I collected and collated tested by an opportunity for me to give evidence and to be cross-examined on the same, or to make an independent investigation of the materials through consulate officials in the various countries concerned. To dismiss the matters on the basis that if one were not to attend, irrespective of whether one could physically be able to go to the Court, is to yet again conveniently remove from serious consideration the matters at hand. In all it was a gross miscarriage of justice and against evidence which must render the verdict unsafe and unsatisfactory as applies to each of these persons.
6.0 SAMIR GEAGEA
6.1 The position of this Defendant is that he was acquitted of the capital charge, but convicted of firearm offences and sentenced to ten years in prison. It was utterly unbelievable, bearing in mind that the odds were against this defendant securing an acquittal and especially when one reads the balance of the judgment as to how the other defendants: were treated if he was at the apex and they were serving underneath him.
6.2 Reliance was had by the Judicial Council on the establishment of what they refer to as a sham party. It was seen as a political subterfuge to establish a party which despite being pronounced as established for political purposes, was in reality the old militia but hid by the penumbra of a political party. It was alleged that Geagea paid wages, kept staff on and conducted the security apparatus with Mr. Touma. Mr. Touma, I am informed and verily believe, was in America, and had been for some time.
6.3 The evidence continued to establish and ultimately lead for consideration by the Court that Geagea had collaborated in and actively counselled and/or procured the accumulation of weapons, in line with the Lebanese Forces Party which in turn was a cover for the Lebanese Forces. As well there were active training programs in intelligence, mapping, and weapons operation. There was a cover set-up allegedly as a scout group, known as, Al Moustakbal Scouts, as well as the running of the Ghosta Military Academy.
6.4 Generally the Court looked at each of the matters that it referred to earlier in respect of Mr. Khoury and the other defendants grouped and discussed above, but came to a conclusion that even though the Church bombing was an operation which was an organised crime, which would have had commanders, planners, and those who would ultimately execute it, Dr. Geagea’s participation therein was not as integral or as principally positioned as was first thought. While it is conceded in the Judgment that he made capital of the bombing and would have used the opportunity presented by it, it is important to note that prior to the bombing of the Church, Dr Geagea had not come under any suspicion for any of the crimes that he has been previously tried with, or is currently standing trial for. And yet the Church was the catalyst that led to his incarceration and to the determination of matters which one would have thought were covered by a general amnesty. It is important in this regard to note that at the time of writing this opinion and analyse of the case at hand, one of the former prosecutors has conceded that the trials given to Dr. Geagea in the past were far from fair and he has publicly apologised and indicated that he no longer wishes to be identified with the States legal team. I refer to the press conference of Mr. Rizk, which I understand has been disseminated to various organisations and a copy of which will be made available to those who having read this report could access it at the same time.
6.5 Ultimately the Court gave to Dr. Geagea the benefit of the doubt on the basis that whilst there were planners and organisers of the bombing operation they could not give any certain role to Samir Geagea neither in co-ordinating nor in planning and executing the operation. Ultimately they came to the conclusion that: “As a result, Council has doubts about the participation of the defendant, Samir Geagea in the Church bombing operation. These doubts should benefit the defendant and lead to the declaration of his innocence.”
6.6 However, such doubts did not arise when it came to the amassing of weapons and the conducting of sham political party which was a disguise for the continuation of the militia. This to my mind is a contradiction in terms, where the evidence is preferred for one conclusion but not the other, when they are both equally capable of the logical conclusion that bears uniformity in the innocence of the alleged perpetrator as opposed to his conviction on one and acquittal on the other. Why is it not that the doubts that existed for the denial and ultimate acquittal of Dr. Geagea in the Church bombing, also remain the same for the possession of weapons, conduct of a militia and the various other matters that were seen fit to render him liable, when in fact and in substance, the evidence was sufficiently incomprehensible and unconvincing to allow an acquittal? One can only say that the answer lies in the genesis of the trial being one of a political witch hunt and ultimately a conviction on a lesser charge and the acquittal on the main charge, will both, (hopefully), place the prosecution and the Judicial Council in a benign and seemingly just light, as opposed to the calamitous catastrophe resulting in the gross miscarriage of justice that has occurred.
6.7 In reality the verdict was both unsafe and unsatisfactory for Dr. Geagea on the very critical basis that leaving aside the absurd conviction of the other defendants in the face of their overwhelming alibi evidence and the fact that E1 Khoury’s conviction was tainted by his confession and should similarly have been rejected, the conviction of Dr. Geagea has massive and mammoth implications akin to the “Guilford Six” and “Birmingham Four” – UK. This occurred in a regime which is judicially far better organised with much more safeguards and entrenched Appellate review; and still was overturned as being found to be procured in circumstances which rendered it unsafe and unsatisfactory. Here in stark contrast there is no such recourse to any review procedure either Appellate or independent thereof and for these reasons the procedure stands damned as being in gross violation of article 14(5) of the ICCPR.
6.8 Nothing further need be entered into to discuss what is already well and truly fallowed turf. It remains to be said though that even with organisations that are loathe to embark upon and enter into matters which have been the subject of domestic remedies and conducted by legal systems within those domestic forums, here there was such a gross departure from what was the minimum required, pursuant to article 14(5) of the ICCPR that it requires close and careful scrutiny and sustained protest. Accordingly, this report should be disseminated to organisations who have been receptive and for which the writer has been extremely grateful such as Amnesty International, the Human Rights Committee of the Congress of the United States, the European Union Human Rights Commission and of course to the particular governments of Australia, Cyprus, the United States, Canada, Sweden and the United Kingdom, who have patiently and properly received the reports for their own international advices but which would not cause any redress for the parties concerned.
6.9 Of special interest, this report is in part dedicated to all of those people who have assisted me from the Lebanese Forces and the political wing of that party and in particular to Mrs. Samir Geagea and all of Dr. Geagea’s workers throughout the world who actively campaign and properly organise themselves for the attainment of peace and justice by lawful means, as opposed to resorting to activities which would belie the respect for the system of law and order that Dr. Geagea maintains and holds firm. Of special interest and the recognition of that interest this report is equally dedicated to His Beatitude Cardinal Boutros Nasrallah Sfeir whose campaign for truth and justice in the name of God and the Maronite Church is especially warmly regarded and acknowledged in his tireless efforts and campaign on behalf of all Lebanese citizens for democracy and just government.
20 November 1996
STEPHEN J. STANTON
G. Geagea. PAP