The Special Tribunal for Lebanon carried on Thursday with a contentious debate on whether to allow the prosecution to present periodic summaries of evidence, amid growing frustration with the fragmented presentation of its case and the slow pace of the trial.
The tribunal is trying five members of Hezbollah in absentia for the assassination of former Prime Minister Rafik Hariri, who was killed in Beirut along with 21 others when a bomb was detonated next to his motorcade. The prosecution’s case relies on the attribution of interconnected groups of cellular phones it contends were used to plot the bombing.
Prosecutor Alison De Bruir laboriously submitted into evidence a tranche of 37 documents related to defendant Salim Jamil Ayyash’s ownership of a BMW, and the crash and subsequent repair of the car in 2004. Tendering copies of the vehicle registration, insurance policy, towing receipt, damage estimate and garage invoice, she suggested that the evidence supported the attribution of a specific phone number to Ayyash.
But De Bruir’s submissions were interrupted by Judge Micheline Braidy. “I don’t see any telephone number in this car accident declaration – did I miss something?” The question was symptomatic of recurring confusion regarding the patchwork submission of complex, circumstantial evidence, and returned the court to a discussion over whether it was appropriate for the prosecution to summarize what it had presented.
Judge Nicola Lettieri raised the matter Tuesday in relation to evidence intended to link a separate phone to defendant Hassan Habib Merhi, and he broached the question again. “When does the prosecution intend to summarize the ... evidence, so we can have a framework of what’s happened until now?”
But defense counselors strongly objected to the request, contending that allowing such submissions would jeopardize the impartiality of the trial. Eugene O’Sullivan, representing the interests of Ayyash, addressed the judges saying: “You’re being told over and over how you’re supposed to understand the evidence ... I find it highly inappropriate for this to take place.”
Presiding Judge David Re addressed the issue directly in the afternoon session. “At this stage of the trial we have so far accepted into evidence the statements or the oral testimony of 180-plus witnesses ... The indication from Mr. Cameron two days ago was another 149 witnesses that he proposes calling. So far we’ve received 1,054 exhibits.”
He remarked that the technical intricacy of the case was also a confounding factor. “The case is extremely factually complicated, [especially] of course in the telecommunications area, which on an objective read is one of the most complex telecommunications cases anywhere, ever.”
“It can be very difficult to try and put it all together as we go, and for the trial chamber to be able to ask pertinent questions,” he concluded, before inviting counselors to comment on the proposal.
Dr. Guenael Mettraux, representing the interests of defendant Assad Hassan Sabra, said he was “sympathetic” to the judges’ position. He noted that at some points during the trial, clarification had been necessary for defense counselors to even comprehend the case being presented, so that they might meet it in future.
“There are significant and material aspects of the case that we don’t understand. We simply don’t know what the case is ... After 18 months of the case, most of the material aspects have not even been touched.”
But he too asserted that providing the prosecution the opportunity to narrate the evidence could affect the impartiality of the court.
Senior Trial counsel Alexander Milne argued that summaries were necessary for the prosecution to build the larger case. “What we seek to do at each stage, as the evidence emerges, is to place it into context.” Addressing the bench he added, “You should see the relevance as it emerges, so that when you come to place together all of these individual parts, it will make sense as a cogent whole.”
But O’Sullivan was insistent that such submissions would impart bias. “We have very serious concerns about the fairness, impartiality and expeditiousness of the trial.”
There is some precedent for such summarization being allowed. Judge Re noted that the International Criminal Tribunal for the former Yugoslavia had permitted its use. He previously served as a senior prosecuting trial attorney at the court.