Human Rights for Lebanon

"Serious Concerns" on The Plight of Lebanese Refugees in Recent Times - Reflections on The Judicial System in Lebanon

 Stephen J. Stanton

The documented failure of the Lebanese Government, since the Taif Accord to protect and preserve the fundamental rights and freedoms as enshrined in the United Nation's Declaration of Universal Rights has been a sad and sorry consistent state of affairs with many tragic results both as to the loss of life, deprivation of liberty and the ensuing dislocation to family, social and professional lives of those immediately affected, and those who vicariously suffer as a result of consequences therefrom.

Recent events, notably the 50th Anniversary of the Universal Declaration of Human Rights, the election of the tenth President of the Republic of Lebanon, His Excellency Emile Lahoud, and the country report on Human Rights Practice for 1998 by the Bureau of Democracy, Human Rights, and Labour, US Department of State published 26 February 1999, have once again focused attention on the plight of the citizens of Lebanon and those who as a result of the Diaspora have fled and sought asylum as refugees throughout the world.

Equally concerning and with vigorous regularity is the continued political persecution and prosecution of Dr. Samir Geagea and his colleagues who as members of the Lebanese Forces are the continued targets of the Syrian backed regime and the equally inept judicial system of the Lebanese Republic.

In writing this paper the purpose is to bring to the fore recent developments in the manner in which Courts in jurisdictions outside of Lebanon, have in the course of entertaining applications for refugee status, determined whether in the circumstances people who were accused, especially those in absentia, were capable of satisfying the criterion as applicable in the Refugee Convention, Article 1F that there were, "serious concerns", that they had committed crimes against humanity and thus were ineligible for refugee consideration and classification.

In recent developments the judgments of the Lebanese Judicial Council, which stands at the apex of the judicial system in Lebanon, has been soundly and rightly criticised as being the author and the agent of a system of justice which has rendered verdicts which are unsafe and unsatisfactory, and for which they rightly stand condemned in the author's opinion, as a juridical body, which is nothing more than a very pathetic parody, insofar as it purports to be a judicial body and in particular, at the apex of the judicial system in Lebanon.

The paper will attempt to discuss the position of refugees who have been convicted in absentia, by focusing on the recent decision of AI-Habr v. Minister for Immigration and Multicultural Affairs, (N98/159) (Matthews J., 12 March 1999). The relevance of the decision of the President of the Administrative Appeals Tribunal of Australia was to the effect that in declaring the applicant to be a person who was not excluded from coverage by the Refugees Convention, pursuant to Article 1F, it exposed or certainly found that the verdict of the Judicial Council was unsafe and unsatisfactory, and in the circumstances not a verdict that could be accorded any great weight.

The decision is a credit to the system of jurisprudence as it exists in Australia and to the judicial officers who administer it and in particular Justice Mathews, whose erudition and determination justly deserve unstinted praise.

The personal focus of the plight of the Lebanese Refugees has centred on and emanates from their association as members of The Lebanese Forces Party. It was and has been identified as the backbone and mainstay of the free Christian existence within the Lebanese community, which is made up of various religions.

Its leader, Dr. Samir Geagea, has of course been the subject of much publicised persecution and prosecution on account of his resistance and refusal to participate in a government that he sees as nothing more than a cowardly compromise pandering to the dictates of the Syrian imposed hegemony.

The Lebanese Forces was established after the outbreak of the 1975 civil war in Lebanon. It initially developed as a disciplined fighting force and thereafter progressed to become identified as a protector of the weak and disadvantaged, and in particular became a crutch for the Christian community in its time of need. Inevitably with the cessation of hostilities and the imposition of the Taif Accord, it sought to become and did evolve as a legal democratic political party representing the aspirations of the Christians in Lebanon. It willingly and readily disbanded its military machine and demobilised its forces, thus ensuring a swift and smooth transition, intent on promoting and developing socio-political programs and the policies that it sought to be elected on, in the hope of a forthcoming free and open democratic form of government and the elections that are inevitably the hallmark of such a society. Alas, that was not to be and the history of the Syrian oppression through the political puppets of the deputies elected to the Lebanese Parliament, is now a matter of historical record.

Dr. Samir Geagea and his followers - those who chose to stay - were then set upon with numerous trials in respect of crimes that were committed against the citizen and the State and which resulted in death and destruction on a wide scale. Church bombings, assassination of key political figures, and in some cases their families and terrorist activities were all the subject of indictments brought before the Judicial Council years after the occurrence of the events, and against a general amnesty which had been decreed for all crimes which may have as their genesis, a political purpose or be so perceived.

Despite protestations of innocence, and the constant maintenance of such a defence, Dr. Geagea and his followers were arrested and those who were lucky enough to flee, or found themselves situate overseas through immigration or by chance that they were not in Lebanon at the time, were indicted en masse. The evidence in support of the indictments, in some cases, was gathered long after, in some cases, the commission of the crimes; and the manner in which the prosecution set about obtaining and collating the evidence and placing it before the Judicial Council was to say the least pathetic and done with a purpose to ensure that nothing like a fair trial would be offered to those who stood accused.

Equally alarming and disconcerting is the fact that the Judicial Council is a body from which there is no appeal and that Lebanon as a signatory to the International Covenant of Civil and Political Rights, Article 14(5), was a breach of its international obligation pursuant to the Covenant, insofar as there was no appeal from this body, for people who were charged with crimes for which the penalties .ranged from death to lengthy periods of imprisonment and forfeiture of property, together with fines. It is against this background and the matrix of facts acts and circumstances which we will consider in the course of this paper, that the position of refugees, and whether there were serious concerns as to their commission of crimes against humanity, that in turn has put much focus on the judicial system of Lebanon and the manner in which it tries the citizens who are indicted before it.

In a report published in October 1997, by Amnesty International ("hereafter Amnesty"), in the dissemination of the material contained in the report it focused on the Judicial Council, referring to it as the Justice Council, and at page 29 had this to say:

Amnesty concentrated on the Cham'oun and church bombing trial and focused on the pre-trial interrogation which involved documented accounts of torture and ill treatment. It looked at the inadequacy of investigations into torture and it also examined the nature of the evidence being led against those being tried. It rightly focused on the fact that the death penalty was imposed and/or was available and that it was deplorable in the present state of international jurisprudence and the justifiable disfavour with which capital punishment should be so viewed.

Amnesty did make recommendations and called on the Lebanese Government to establish a Commission of Inquiry to investigate the cases of those persons who had disappeared or went missing following abduction by militia groups during the civil war. It sought a Commission of Inquiry based on principles of impartiality, competence, and independence of its members, whose personal safety would be ensured.

There was a further recommendation seeking the prevention of arbitrary detention, as well as steps to end torture and ill treatment. Finally Amnesty recommended that there should be fair trials for political prisoners, and:

"Urgent steps should be taken to ensure fair trials for political detainees and suspects in accordance with international standards, such as the ICCPR and the Basic Principles on the Independence of the Judiciary.

There is a presumption in international law that civilians should be not tried by military courts and Amnesty International therefore urges the Lebanese Government to holt all trials of civilians before the Military Court and refer the cases to the respective civilian court.

There is also a presumption in international law that special courts should not be created without legitimate judicial reasons. Unless the Lebanese Government can show that such reasons exist with regard to the Justice Council, Amnesty International recommends that trials of persons charged with political offences should be held before the ordinary criminal courts." -p. 38 Lebanon Human Riqhts Developments and Violations, October 1997.

The caution and consideration expressed by Amnesty has of course gone unheeded by the Lebanese Government and the judicial system which was justly criticised by Amnesty still operates as at the date of this paper.

The convictions in the Danny Chamoun and the church bombing/killings, as well as the other trials which have been held and which need not be the subject of specific reference are to be found in literature on the subject from agencies such as Amnesty. The author has written papers on the judicial process with respect to Dr. Geagea and his co-accused, and an analysis of the bombing of the Church of Sayadat al Najjat, Zouk Mikayel No. 3 of 1994 (20th November, 1996).

I adhere to the comments made with respect to the system of justice that was responsible for the verdicts being announced and maintain my criticism of the events that occurred.

The number of refugees as a result of the prosecution and persecution of the members of the Lebanese Forces has been such that if one were to tally the number of refugee applications sought and successfully granted, they would total in the order of possibly 100, and certainly in excess of twenty in Australia to the writer's knowledge.

From geographic locations as diverse as Sweden, the United Kingdom, Australia, Canada and the United States together with France and the Netherlands, people have sought and been granted refugee status.

The focus of this paper is the application of the Refugee Convention and its disentitling provisions to persons who have been convicted or are suspected of committing crimes against humanity. That is the focus of this paper, and in particular, where those crimes are alleged to have been committed and so found by the Judicial Council of Lebanon. In essence this is what this paper's attention is being directed to.

The Convention Relating to the Status of Refugees, 189 U.N.T.S. 2545, entered into force, April 22, 1954, ("hereafter the Convention"). It was conceived as a means whereby refugee status would be seen as a transitory phenomenon. Such a phenomenon would expire when a refugee could either reclaim the protection of their own state, or had secured an alternative form of enduring protection. See The Law of Refugee Status, James C. Hathaway (1991).

Refugee law is primarily to afford surrogate protection pending the resumption or establishment of meaningful national protection.

The Convention explicitly defines the very situations in which the cessation of refugee status is warranted.

Refugee status is not a matter that can be obtained as of right, nor is it the entitlement of every person who is genuinely at risk of persecution. There are exceptions and they are notable: serious criminals and persons whose actions have exhibited flagrant disregard for the purposes of the United Nations, who suffer the possibility of persecution in their state of origin, are outside the scope of the refugee definition. In short, Convention exclusion clauses are framed so as to bar persons who pose a critical risk to the receiving state, or whose own breach of fundamental standards of humane conduct, renders them unworthy of protection.

The Article which prescribes for the refusal of refugee status to be accorded to a person, is Article 1F of the 1951 Convention, which provides as follows:

1F. "The provisions of this Convention, shall not apply to any person

with respect to whom there are serious reasons for considering that:
 

1. he has committed a crime against peace, a war crime, or a
   crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crime;
    
2. he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
    
3. he has been guilty of acts contrary to the purposes and principles of the United Nations."

Accordingly, one sees from the title to this paper the concept "Serious Concerns" is to be read aliunde with serious reasons, as it appears in Article 1F of the Convention. In turn this requires for consideration by the Contracting State upon whom resides the competence to decide whether any of these exclusion clauses are applicable. It is incumbent upon the contracting state, in whose territory the applicant seeks recognition of his refugee status to make these findings and conduct these inquiries. It certainly was and has been considered to be the law, that for these clauses (exclusionary) to apply, it is sufficient to establish that there are "serious reasons for considering" that one of the acts described has been committed. Formal proof of previous penal prosecution is not required. Considering the serious consequences of exclusion for the person concerned, however, the interpretation of these exclusion clauses must be restrictive.

It is against this context that the plight of the Lebanese Refugees, the subject of this paper, must be considered. They invariably have been charged with and have been convicted inevitably in absentia of crimes, which would justify categorisation as crimes against humanity. The killing of innocent women and children as a result of bombing a church, or assassinating a political figure and his family, do not need elaboration of whether they come within the category to be so considered. It goes without saying that such crimes are correctly so categorised.

Certainly the drafters of the Convention were preoccupied to avoid the granting of refugee status to both war criminals and individuals who might jeopardise the internal security of the asylum countries. The decision to exclude such persons, even if they are genuinely at risk of persecution in their state of origin, is rooted in both a commitment to the promotion of an international morality and a pragmatic recognition that states are unlikely to agree to be bound by a regime which requires them to protect undesirable refugees.

It certainly is enshrined in the Universal Declaration of Human Rights, Article 14, paragraph 2, that there is a prohibition on the granting of asylum to persons liable to prosecution for: "....non-political crimes or...acts contrary to the purposes and principles to the United Nations."

The individuals who come within the mandatory exclusion are within three classes of persons:

(a) those who have committed crimes against peace and security;

(b) serious common law criminals; and

(c) individuals who have acted in contravention of the principles purposes of the United Nations.

What then is a government faced with, and what does it do when there is before it a person who claims refugee status but also has indicated that the reason he is fearing persecution is that he has been convicted of a crime against humanity which he says he is not guilty of and which in any event was unsafe and unsatisfactory, but nevertheless the conviction is so recorded against him.

It would of necessity fall to each contracting state to decide for itself when a refugee claimant is within the scope of an exclusion clause. I am reminded of the caveat expressed by a delegate to the drafting of the Convention when he said:

"In the absence of a loyal government and of a sovereign international court of justice, that power of discretion, which was an essential safeguard both for the real refugee and for the country of refuge, must, perforce, be left to States. The only practical solution was to trust the country which were willing to grant hospitality." - Mr. Rochesort of France UN Doc. E/AC.7 SR 166 at 6, August 22, 1950.

Accordingly, an asylum State need only have "serious reasons for considering" that the applicant is a criminal described in the exclusion clause; there is no requirement that he/she had been formally charged or convicted, or even that his or her criminality be capable of establishment, "beyond a reasonable doubt" by a judicial procedure. It is enough for the determination authority to have had, "Sufficient proof warranting the assumption of the [claimant's] guilt of such a crime."

What I consider to be relevant in the interpretation of Article 1F is that its problematical status lies in determining whether a crime was political, which in turn requires the nature and purpose of the offence to require examination as to the motive. Was it genuinely political? Was it merely for personal reasons or gain? Was it directed towards a modification of a political organisation or the restructure of the State, and is there a close and/or direct causal link between the crime committed and its alleged political purpose and object.

When one considers that the political aspects apart, the phrase, "serious non-political crime" is not easy to define given the different connotations of the term, 'crime' in different legal systems. The standard one would think finally to be applied is an international provision, in that a provision of a multilateral treaty is involved, but standards relating to criminal prosecution and treatment of offenders, current in the potential country of asylum are also relevant. Each case then must in turn require examination on its merits, with regard paid to both mitigating and aggravating factors, and to the level of individual responsibility.

It is my opinion that Article 1F whilst excluding persons, rather than refugees, from the benefits of the Convention, is suggestive of an issue that well-founded fear of persecution is irrelevant and need not be examined at all if there are serious reasons for considering that an individual comes within its terms.

While in practice, the claim to be a refugee can rarely be ignored, for a balance should be also struck between the nature of the offence presumed to have been committed, and the degree of persecution feared. A person with a well-founded fear of very severe persecution, such as would endanger life or freedom, should only be excluded for the most serious reasons.

Certainly the presumption of serious crime would be raised by evidence of commission of an offence of homicide, rape, child molestation, wounding, arson, drug trafficking, and armed robbery. Such a presumption should be capable of rebuttal by evidence of mitigating factors, and factors to support a finding of seriousness should also be looked at, which would include use of weapons, injury to persons, value of property involved, types of drugs involved and evidence of habitual criminal conduct.

What was missing however in the determination of refugees and their status, and in particular as to whether refugees who were accused of serious non-political crimes or crimes against humanity, was the need to ensure that the very process by which they were so convicted was one which accorded to the basic principles of the United Nations and the Covenant for Civil and Political Rights and Fundamental Freedoms to ensure that such a verdict was arrived at only after a just and fair deliberation. This sadly is not a matter, which is attendant with a determination of the Convention being liberally construed. It has resulted in a burden of proof less than what one would term satisfactory being utilised for consideration of the phrase and concept "serious reasons for considering".

Regrettably, but nevertheless giving full consideration and according respect to the doctrine of comity to decisions of foreign courts, the standard of proof, or more particularly the burden of proof for a tribunal to be satisfied has in the past been held to be to a standard that was sufficient if there were, "reasonable grounds for believing" that the conviction was safe or that it was "so properly recorded and arrived at". Such a very seemingly light burden to be satisfied of such matters, has, in the past in my opinion, rendered grave injustice and resulted in miscarriages of justice to individuals seeking refugee status. I refer to decisions such as Re Jolly and Minister of Manpower and Immigration 54 D.L.R (3.d), a decision of the Canadian Federal Court of Appeal; Re Ramirez and Minister of Employment and Immigration 89 D.L.R.(4d) 173; Re Moreno et al. and Minister of Employment and Immigration 107 D.L.R (4th) 424, and T v. Immigration Officer (1996) A.C. 742.

In these circumstances how then would one hope to assail decisions of the Judicial Council which were in effect doing the work of a Military Court in hearing trials and in convicting people, especially in absentia, such as have occurred in the decisions referred to herein.

It is important to note that the Judicial Council was established by Article 143 of the Code of Criminal Procedures. The Judicial Council is the highest criminal court in Lebanon. It is composed of five senior judges from the Court of Cassation, with the head of the latter presiding over the Judicial Council. The jurisdiction of the Judicial Council covers, among other things, all crimes affecting State security, terrorism and unlawful associations (Articles 270 - 336 Penal Code). In particular the Judicial Council's rules in cases involving assassinations of, or assassination attempts on, senior politicians, diplomats and religious personalities, and cases of political violence in general. In theory it would appear that the Judicial Council, by its very composition, and seniority of its judges and the publication of its proceedings, provides for fair trial guarantees. However, in my opinion nothing could be further from the truth. To my observation, and from my reading and understanding of the procedures of the Judicial Council, there are grave concerns as to whether its proceedings are compatible with fair trial standards as laid down by Article 14 of the ICCPR. These concerns arise from the statutory composition of the Council, while others are related to its proceedings in practice as manifested in the cases that have been referred to herein.

The Judicial Council is a special court to which cases are referred at the discretion of the Council of Ministers and not as a result of normal judicial procedure. Herein lies the vice and the root of the problem as I perceive it, insofar as one would then hope to categorise the proceedings as fair, impartial and judicial.

The UN basic principles on the independence of the judiciary, and in particular principle 5, provides that:

"Tribunals that do not use the duly established procedures of the legal process, should not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals."

I have already referred to the fact that despite Article 14(5) of the ICCPR there is no right of appeal, and more particularly in respect of sentences passed by the Judicial Council, which can include the death penalty.

In the years 1994 - 1997, and in fact up to the present time with the trial of Dr. Geagea and his co-accused for the assassination for the late Rashid Karami, the Judicial Council has engaged in the trial of a number of high profile cases. The church bombing case and the murder of Danny Chamoun and his family are two other notable instances that have been referred to by myself in specific reports and consideration of the unsafe and unsatisfactory nature of those verdicts.

The application of the Convention and its interaction with the Judicial Council of Lebanon and the verdicts pronounced, was highlighted and ripe for consideration with the application for refugee status by Attef aI-Habr who came before the Administrative Appeals Tribunal, seeking to set aside the decision of a delegate of the Minister for Immigration and Multicultural Affairs, refusing application for a protection visa under s. 36 of the Migration Act, 1958, (Australia). It is the predominant purpose of this paper to focus on this decision because it, to the writer's knowledge, for the first time throughout the world, has been the singular occasion when a decision of the Judicial Council and in particular a conviction of a person in absentia and more relevantly the trial generally, has come under consideration by an independent judicial tribunal seeking to review the status of the verdict, and whether it would constitute a serious "non-political crime" thus justifying exclusion pursuant to Article 1F of the Convention.

It is because of the nature of the treatment of the Judicial Council's reasons and verdict and the decision reached by Justice Mathews in Mr. AI-Habr's case that requires such detailed consideration in this paper. It marks the start of hopefully further consideration into the position of the Judicial Council and its verdicts in the cases decided thus far and any proceedings to be decided in the future, so that international consideration will be given with a view to vigorous examination of these verdicts and the status thereof as against the observations of Justice Mathews in her reasons for decision, as given on 12 March 1999. A copy of those reasons accompanies this paper to enable more useful reference.

Mr. Attef AI-Habr (hereafter "the applicant") sought review of a decision of the delegate of the Minister for Immigration and Multicultural Affairs, refusing the application for a protection visa under s. 36 of the Migration Act 1958 (Australia).

The applicant was a citizen of Lebanon who with his wife and daughter arrived in Australia and thereafter applied for a protection visa. He in applying for the visa indicated he had been convicted, in absentia, of the assassination of Mr. Danny Chamoun and was sentenced to death but commuted to life imprisonment. He maintained that he was falsely accused and the charges were politically motivated. In essence the claim for refugee status was based on the fear that if required to return to Lebanon, he would be imprisoned for a crime he did not commit.

The Minister's delegate refused the application for a protection visa on the grounds there were serious reasons for considering that the applicant had committed a serious non-political crime and he was thus excluded from the Refugees Convention ("the Convention"), pursuant to Article 1F(b), and thus did not meet the Migration Regulations as applicable in Australia for the grant of a protection visa.

In the reasons for decision by Justice Mathews, who was up to 19 March 1999, the President of the Administrative Appeals Tribunal, before returning to her position as a Justice of the Federal Court of Australia, her Honour gave very full and detailed treatment to the applicant's background. In her decision she referred to his involvement with the Lebanese Forces (hereafter "LF") and the fact that he was involved in fighting the Syrians but that he had returned to civilian life, although continuing to serve as a volunteer in the reserve forces of the LF.

He returned to active military service in August 1986 and ultimately became a military instructor.

Mr. AI-Habr gave evidence to the Tribunal before whom he was seeking a review of the Minister's decision, that he learnt of his nomination as a suspect in the Chamoun murder and decided to leave Lebanon. Whilst on his way overseas he met four senior members of the LF's internal security apparatus and the military apparatus, whom he had known in Lebanon. Two of these people notably Tony Obeid and Ghassan Touma, were later to become his co-defendants in the Chamoun trial.

The applicant gave a very graphic tale of his flight from Lebanon to Cyprus and thereafter fearing the possibility of being kidnapped to Bulgaria in April 1994, where he was joined by his wife and daughter, and from there to Brazil where he had relatives. He obtained false Brazilian passports and travelled to Europe, and in June 1995 whilst in Germany, the Judicial Council handed down its decision convicting him and others of the killing of Danny Chamoun and his family. He applied for a tourist visa to Australia and travelling on his Brazilian passport, arrived in Australia on 20 October 1995.

While keeping in contact with his family in Lebanon, he learnt of their harassment and the fact that they were, that is to say the Lebanese authorities, intent on findings his whereabouts, with a view to seeking his removal back to Lebanon.

It must be said and stated for the record that I am not aware of any attempt to extradite any Lebanese person accused and convicted of any crime by the Judicial Council in respect of any of its major trials where those persons have been found to be residing in another country. Notable amongst these are Mr. Tony Obeid and Mr. John Chahine. There are others, but their identities need not be disclosed in view of their wish to be respected as confidential. In the circumstances, the publicity given to Mr. Chahine recently in the Sydney newspapers was regrettable, but nevertheless shows the covert attempts that the Lebanese Government, through its consular officials will stoop to, to have the identity of refugees disclosed, with a view to embarrassing them.

The point to be made however is that in the absence of any extradition process being undertaken, one must really doubt the genuine belief in the attempt by the Lebanese Government to seek to prosecute ultimately to the end, where the person convicted is sentenced to prison and/or death, or suffers the pecuniary penalties imposed by the Court. In view of its reluctance to so pursue these "felons" it really bespeaks of the lack of sincerity and confidence that the Government places in its Judicial Council and its deliberations.

In AI-Habr's decision, her Honour, Justice Matthews went carefully and very accurately through the political situation in Lebanon. She then referred to the hearing before her and in particular to evidence given by myself with the concurrence of the counsel for the respondent Minister. It must be said at the outset that in these proceedings, the Minister's legal representative was both admirably fair and very much minded to see that there was a fair agitation of the issues and that his role was to ensure that justice be done, not only insofar as his client was concerned, but also insofar as the applicant was to be given a fair and impartial hearing, which he certainly ensured by his conduct, and needless to say her Honour ably presided over the proceedings as well.

Mr. AI-Habr of course denied any involvement in the despicable and very tragic assassination of Mr. Danny Chamoun and his family. What her Honour then went on to consider was the course of the trial that Mr. AI-Habr had endured and to consider the report given by myself, the evidence in respect of those matters and to look at independently of any testimony that I had given, the question of whether Mr. AI-Habr had received a fair trial, such that the conviction imposed and the penalty was both rational and able to be relied upon to justify exclusion

pursuant to Article 1F of the Convention. Her Honour did in the course of her Reasons for Decision, indicate that she was hampered by the paucity of material and that all she had to go on was the translation of the verdict in the Chamoun trial, the applicant's evidence and the writer's evidence. It must be said however that in the course of the trial, and more particularly prior to it, it was hoped that the Lebanese Government would intervene, or would supply material, or would offer one of its officers to give evidence, or alternately send someone from Lebanon to comment on the proceedings that had been embarked upon.

Holding out such optimism that the Lebanese Government would respond and would readily come to justify the conviction and the penalty imposed is to use a very sad but nevertheless apt analogy, of "leaving the landing lights on for Emilia Erhardt." Nobody from the Lebanese Government, or for that matter from the Judicial Administration, either offered anything in writing or bothered to attend personally. In those circumstances, it was foreboding of the confidence that the Lebanese Government had in its judicial administration and in the conviction imposed.

The prosecution case of course highlighted the political confrontation between Dr. Geagea and the late Danny Chamoun. It also centred on the support given to General Aoun, by Mr. Chamoun. The prosecution case essentially was as follows:

"The structure of the verdict appears to be as follows. First, there is a description of the "plaintiffs" in the proceedings (pp. 162-163). (The reference to the "common right" at p.163.1 appears to be a reference to the fact that it is the "people" or the "State" who are bringing the prosecution. Second, the defendants are named (pp. 163-164). Third, under the heading "By the name of the Lebanese People", the composition of the Court is set out (p. 164). Fourth, there is a recital of the history of the granting of indictments, the course of the investigation and the referral of the case by the Cabinet to the Judicial Council (pp. 164-170). Fifth, (at pp. 170 to 221), a recitation and discussion of various legal arguments and factual submissions that were put on behalf of the defendants, and some reference to the prosecution's response. For example, a challenge was made to the jurisdiction of the Judicial Council to hear the case (180.10-171.5), a challenge was made to the places in which the various interrogations occurred and the circumstances in which they occurred including the fact that they occurred in the absence of legal advisers (171.7, 172.2, 172.6), objection was taken to the joinder of plaintiffs other than the State (172.10-173.7) and a submission was made that these actions were covered by a general amnesty law that was promulgated in 1991 (173.10). It also appears that arguments were put that the investigation was part of a campaign of harassment of the Lebanese Forces (175.5-176) and other complaints were made to the effect that the investigation was compromised (see for example 179).

 

 

The remainder of the verdict then appears to consist of 6 different sections comprised as follows:

(i) A rejection of the submission that the "National Liberal Party" was not entitled to be a plaintiff in the proceedings (214-215).

(ii) A rejection Of the submission that this crime was covered by the amnesty law of 26 August 1991 (215-218).

(iii) A rejection of the submissions concerning the "invalidity" of the investigations that led to the proceedings (218-221);

(iv) A description of the facts found by the Court to support the verdicts (221-239);

(v) A section that appears to be a description of the evidence and matters relied on by the Court in finding those facts (239-318);

(vi) A final section where the Court applies the facts as found to the relevant law (318) resulting in final orders, verdicts, decrees and sentences (332-338).

The evidence before the Judicial Council that pointed to the Applicant's involvement in the killing of Mr. Chamoun and his family appears to be as follows:

(v) Evidence from Fadi Saab, said to be a member of the Intervention Unit of the LF, that he was told by another member of the unit that the Applicant had shot Chamoun (257.8);

(vi) Evidence from Walid Geagea that he was a trainer of members of the Intervention Unit and that he was told by another member, El Kaddoum that, inter alia, the Applicant was amongst the group that assassinated Chamoun (258.2);

(vii) A statement by Tony Moussa that the witness, Karam, had told him that the Applicant was involved in the killings (261.2);

(viii) A statement by a Maroun Ghanem that a person close to Geagea had stated that the Applicant was involved in the murder (262.5);

In a hallmark feature of the trial which had striking similarities to other cases tried by the Judicial Council and in particular the church bombing case, the only evidence directly implicating the applicant, came from co-defendants.

Her Honour when considering the evidence of the co-accused, Mr. Kamil Karam, said: "Of these, it was the evidence of Karam which was particularly damaging to the Applicant and to his co-defendants. Indeed this evidence was pivotal to the prosecution case. Without it, it is very difficult to see how any of the defendants could have been convicted of these killings.

It is reminiscent of the evidence given in the church bombing case of the co-accused, Mr. George Khoury, who attempted to retract his confession, which he said was obtained under torture, but which was prevented from being so retracted. It was this evidence, by Mr. Khoury which allegedly saw Messrs. Chahine and Obeid plotting and Mr. Chahine placing the bomb in the church. When Chahine attempted to place before the Court alibi evidence duly notarised indicating he was in Cyprus at the time and could not have been where Mr. Khoury had allegedly seen him. The Judicial Council rejected such evidence and chose to prefer to rely on the retracted confession of a co-accused, alleged to be obtained initially under torture. Such is the breath of judges.

Essentially Mr. Karam's evidence was that he saw the applicant pursue others with army uniforms and Ingram Machine guns which were fitted with silencers. They then left the barracks in three separate cars, the Applicant also carried a Motorola telephone. He saw the Applicant accompany two men to a building carrying the guns and wearing the uniforms, and after a few minutes three men came out of that building. They drove returning to their place of origin, from which the journey commenced. They surrendered the machine guns and allegedly the next day one of the co-accused told Karam, with whom he shared a room, that the three of them had killed Danny Chamoun and his family. Me also indicated that the Applicant had inadvertently left the motorola mobile telephone behind.

His evidence was corroborated by Mr. Rafik Saadeh. He of course saw or basically corroborated in essence what Mr. Karam had said. There were differences in the versions, in particular as to the number of machine guns used, but the essence of the testimony was for corroboration. Her Honour said at p. 18:

"This was its principal importance in my view, for Saadeh's evidence alone would not have been sufficient to establish the case against the applicant or any of the other defendants."

Remarkably evidence of the people who were living with the Chamoun family and were their domestic help such as the maid and a person who could be described as the caretaker, failed to identify the applicant. As her Honour posed the issue:

"The real question is whether these witnesses, or either of them, identify the applicant as one of the assassins. If they did so, it would have constituted very powerful evidence against the applicant. Indeed, subject to the nature of the identification, it might have made the prosecution case an overwhelming one."

The decision is absent any identification evidence from any domestic staff of the late Danny Chamoun and in that regard is remarkable. In the circumstances the two witnesses failing to identify the applicant, their evidence could not advance the prosecution case.

Looking at the motorola phone, her Honour found that evidence disquieting. she referred to it as such in the following terms:

"There are two aspects of the evidence relating to the Motorola Telephone which I find disquieting. The first, and more significant, is the failure on the part of the investigating authorities to fingerprint the telephone. It is possible that, given the conflicts in Lebanon at the time, fingerprinting was not readily available as a forensic tool. However, the verdict quotes the defence has having criticised the investigators for failing to take this step (a criticism which, the Court appeared to ignore) so I must assume that fingerprinting facilities were at least available in Beirut at that time.

 

The other piece of evidence about the Motorola which I find surprising is Awad's account to Karam of the Applicant having inadvertently left it lying on the sofa in the apartment. To put it bluntly, this smacks to me of, "gilding the lily". It is impossible to visualise the circumstances in which the assassins - whoever' they were - must have departed the Chamoun apartment. A blood bath had just taken place, in which two adults and two children had been mown down by multiple machine gun fire. It is unlikely in the extreme, in these circumstances, that Awad would have noticed the Motorola left behind in the apartment. Had he done so, one would expect him to have alerted the Applicant, or alternatively, to have retrieved it himself. Where it is likely that Awad had learnt about the loss of the Motorola from the Applicant before he gave his account to Karam. For the Applicant and Awad travelled back to the barracks in different cars and then, according to the evidence, they all dispersed quickly. There was little, if any, opportunity for the Applicant to tell him about it... Nevertheless, the evidence relating to the Motorola telephone does not, in my view, enhance the prosecution case against the Applicant. On the contrary, it contributes to my misgivings as to the general nature of the investigation, which preceded this trial.

There was some identification evidence of a Mr. Toweini, who was allegedly on a LF "hit list". He came onto this list allegedly in October 1990. He gave evidence at the trial of the Applicant, identifying him as the visitor on an occasion when he came to inquire about his health. The basis of the identification was a photograph, which was shown to him four years after the event from which he had been visited by the Applicant. The Court accepted the evidence as showing that the Applicant, posing as an army lieutenant had intended to assault or murder Mr. Toweini, but was foiled in his attempt by the presence of guards."

Once again her Honour was caustic in her rejection of this evidence, and worthwhile extracting at length from her reasons for decision, her rejection:

"This evidence is disturbing on several counts. It goes without saying that it would, in our courts, be entirely inadmissible. Even if one were to accept the accuracy of the identification, the most this evidence could prove is that the Applicant had access to an army lieutenant's uniform. To draw anything further from it involves circular reasoning process, which goes something like this: The Applicant was one of the members of the Lebanese Forces who committed the Chamoun killings. Therefore when he visited Mr. Toweini's home a day or so earlier, he was bent on assaulting or assassinating him. The fallacy of this reasoning is revealed when the premise is removed. In truth there could have been any number of reasons for the Applicant's visit to Mr. Toweini. Certainly some of them might have been sinister, but it would be impossible to conclude from the fact of the visit alone, that the Applicant was bent on assault or murder.

In referring to the Applicant's visit to Mr. Toweini, I do not want to be taken as accepting this identification evidence. This evidence would never be admitted in a criminal trial in Australia. It is well recognised by our Courts that there is a significant danger of witnesses being mistaken in their identification of strangers. The duration of the meeting between the witness and the person later sought to be identified, and the time, which elapses between the meeting and the subsequent attempted identification, are both highly relevant matters in this regard. Nor do Australian criminal courts generally allow identification evidence which is based upon the production to the witness of a single photograph."

 

"The Applicant may have been one of the Chamoun assassins, but it is at least equally likely, in my view, that he was not. And given the extreme consequences to him of an adverse finding in this case, I cannot accept that I am obliged in these circumstances to find that there are serious reasons for considering that he was." - p. 27.

His Excellency Emile Lahoud on being inaugurated as assembled Parliament in terms where he was, if not

President, spoke to the directly, then certainly indirectly criticising and in my opinion justly, the despicable and deplorable position that the judiciary had sunken to in Lebanon. He said on his inauguration that rulers and those ruled are united in complaints and scepticism on account of the fact that the language of the law is often absent and often purposely ignored. He indicated that his pledge to uphold the Constitution the State and the law was one in which he as President had taken, and that as the head of state, there is no-one, not even he, who is above the law. In fact he said he would be under the law.

One cannot be critical of Mr. Lahoud at this stage, because one cannot judge by his Presidency thus far whether he is a hypocrite or in fact "a Daniel come to justice".

His words were optimistic and opportune. They spoke of the wonderful potential that his presidency may hold for Lebanon. I rely on propositions that he put forward to the effect that under no circumstances, not even at the peak of the feelings of strength, must we forget the power we exercise is the power of the law and not our own, as he ably put it. His comments, which I quote from an extract given to me and I trust the translation was accurate of the Judiciary, are apt and they are as follows:

"They [the people] are rightfully seeking an honest judiciary, independent of all forms of intervention or influence on its members or rulers; a judiciary with which everyone, no matter how influential or humble, will have to reckon with. Yes, a judiciary that everyone, the influential personalities and the humble, will have to reckon with. They want an administration that will be strictly supervised, characterised by honesty and expertise, run by officials whose immunity is derived their political or sectarian from their professional performance, not from protection. They want an administration from which they can obtain services by paying taxes, not by bribery as well as taxes. Yes, they would buy the services with taxes, but not bribery and taxes."

 

If Mr. Lahoud is to be believed, and I have no reason to doubt, that His Excellency was not speaking the truth as a minority of politicians are prone to do, then we can feel justified that Lebanon may well be on the road to reform. After all "Damascus" is just a little to the north and it runs through the Levant without deviation - so Saul found out when he set forth.

However, despite the inauguration of the President, there is the prospect that the forlorn hope held may well be dashed when one looks at the report of the State Prosecutor, Adnan Addoum, where he flatly denied allegations of the use of excessive force, torture and abuse by Lebanese Authorities replying to the report of the position of human rights practices in Lebanon as released by the Bureau of Democracy, Human Rights and Labour, of the US Department of State, printed 26 February 1999. The report speaks at length of the dismal and deplorable record of the Lebanese Government in areas of people disappearing, an abject lack of respect for the integrity of the person; political and extra judicial killing, arbitrary arrest, detention, exile and a denial of a fair public trial. Once again the focus is on the Judicial Council. Similarly there was a report in The Economist, January 24, 1998, which spoke of the curtailing of the Lebanese TV media, which was constrained and in effect gagged, akin to the Lebanese newsprint media. No redress of this disgraceful and deplorable situation has been rectified. The State Prosecutor, Mr. Addoum, whose name conveniently rhymes with "gloom and doom" was punctually pathetic in decrying Amnesty International for failing to get its information correct, i.e. from the Government. Regrettably, Mr. Addoum lives in a fool’s paradise. The US State Department Report speaks volumes and is coincidentally, we would submit, correctly in accord with Amnesty International and other Human Rights groups.

As a convenor of the Human Rights group, Cedarwatch, we too support and endorse the comments made by the US State Department and Amnesty International.

Essentially, what one must distill from the decision in Mr AI-Habr's case is that the plight of Lebanese refugees is both serious and one of continuing concern to the international community and the domestic states who contract to the Convention to ensure that they are given adequate and fair consideration in the determination of their refugee status.

When verdicts such as the Chamoun killing are exposed to rationale and vigorous examination, by independent judicial officers, they are seen for what they should be, namely, gross miscarriages of justice, which in some cases have resulted in the death penalty being imposed, and in others inordinate lengths of imprisonment in barbarous jails if the people are ever brought back to serve their sentences.

Whilst Cedarwatch is an organisation that is concerned for each and every denomination, race, creed and ethnic grouping, it must also be said that there has been a singular treatment of Christians who have been highlighted for special consideration to the extent that they are being abused in the greater majority of cases. I refer to the article by Geoffrey Goldberg, in the New York Times endorse his comments on and concerning the state of the Christian populace throughout the world, and in particular the Middle East. One needs only to refer to the situation in East Timor, Indonesia and India of recent times to note that there is no such thing as a safe creed or that Christians are to be seen as privileged insofar as they are not amenable to persecution.

Of equal concern is also the fact that certain Muslim sects in Lebanon are equally treated with the diabolical deliberations of the Judicial Council and the Government, because they do not meet or tow the line of the Syrian master.

This then brings me to the latest of the trials and tribulations of Dr. Samir Geagea and his co-accused. This trial concerns the political assassination of the former Prime Minister, Rashid Karami, who was assassinated whilst flying in a helicopter. It has the same hallmark features of the earlier trials, which are:

(a) a witness has come forward to indicate implication of Dr. Geagea and other LF members;