The Special Tribunal for Lebanon heard arguments Thursday over whether limits should be placed on the judicial questioning of witnesses. Counselors contended that the question goes to the very heart of the trial’s impartiality.
The issue was raised Wednesday following examination of a witness who testified that he had known a man named Sami Issa. Prosecutors allege that Issa was an alias used by defendant Mustafa Badreddine, one of five members of Hezbollah being tried in absentia for the 2005 assassination of former Prime Minister Rafik Hariri.
Following cross-examination by defense counselor Iain Edwards, who represents the interests of Badreddine before the court, judges asked a number of their own questions.
At particular issue was a query by Alternate Judge Walid Akoum, who asked the witness if he recognized Issa in the images of Badreddine that have been disseminated by the media.
Edwards stood and objected to the query. “The witness has seen images of the accused in the press and in the media, and if that is the case, the correctness of any subsequent identification would be very much thrown into question.” He contended that the judge’s asking of the question was inherently prejudicial. Other defense counselors concurred.
When the subject was revisited Thursday, Edwards argued that as it was still a matter of dispute whether the pictures of Badreddine were authentic, the question was inappropriate. Further, he ventured that the opening of a new line of questioning by the bench violated the defense’s right to due notice, and by extension the impartiality of the court itself.
“The defense finds itself in difficulties when cross-examination is finished, and a question from the bench opens up a whole area ... of which the defense was not on notice,” he said.
“Had we known the issue of the identity would have been raised, a quite different strategy would have been employed from the outset.”
The court discussed at length what limits, if any, should be placed on judicial questioning and counselors objections. More than one of the judges defended the bench’s right to interrogate witnesses without interruption.
“There is the right that there is the possibility in common law and in civil law to object to a question asked by the judge. But the threshold must be very, very high” Alternate Judge Nicola Lettieri said.
“It’s a question when the judge asks a question that could potentially endanger the witness [by] disclosing their identity, or [makes] a palpable or remarkable technical mistake,” he said, adding that he did not believe such a threshold had been met.
“We as judges are looking for the truth, seeking the truth wherever it lies,” Akoum said.
Presiding Judge David Re cited the proceedings of International Criminal Tribunals for Rwanda and the former Yugoslavia, which provided judges significant leeway in this regard.
“I’ve yet to find a case where judges have held that they can’t ask a question they wish to ask,” he said.
“We accept absolutely that judges have very wide discretion to ask any questions they wish,” Edwards said. “It would be my submission that the red line is where the question and any answer are likely to lead to an unfair trial, the trial chamber being responsible for the trial being conducted fairly.”
He was supported by submissions from a number of defense counselors, but also by the senior trial counsel for the prosecution, Alexander Milne, who argued that judges should not ask questions where they could “lead to actual bias or a reasonably informed observer to apprehend bias.”
“The duty upon the trial chamber is to consider, ‘Is this likely to lead to unfair evidence?’” he said. “International judges seem to be very reluctant to shackle themselves.”
Edwards suggested that the contention arose in part due to the tension inherent in the combination of civil and common law practiced at the trial. Common law is largely uncodified, its application relies on precedent, whereas civil law depends on a continuously amended compilation of legal codes and statutes, whose provisions are applied by judges. And whereas in common law systems judges typically act as arbiters between adversarial parties, in civil law traditions, judges are more directly involved in establishing the facts of the case.
The Tribunal relies heavily on the Lebanese Code of Criminal Procedure, itself based on French civil law, but also relies on precedent established in international law. The adjectival law of procedure and evidence it uses is decided to a significant extent by the judges, who are themselves of diverse backgrounds.
The court determined that it would revisit the issue in future if necessary. The tribunal resumes Monday Nov. 16 for further witness testimony.