BEIRUT: Despite the Special Tribunal for Lebanon’s unscheduled monthlong hiatus, both the defense and the prosecution have been battling rigorously behind the scenes over the now-delayed testimony of Andrew Donaldson. Donaldson, a cellular data analyst, has worked for the prosecution since 2009. He was originally scheduled to testify in front of the trial chamber in early May on attribution reports he authored linking four of the indicted suspects to phone numbers used to plan the 2005 assassination of former Prime Minister Rafik Hariri.
Donaldson’s testimony is expected to be crucial for the prosecution, solidifying the case connecting individual suspects to the conspiracy.
Donaldson testified before the trial in 2015, but his second scheduled appearance sparked protests from the defense, which filed a motion on March 21 ordering the disclosure of eight categories of documents related to Donaldson’s evidence.
Two of the specified categories were emails exchanged between Donaldson and members of the prosecution and notes made during conversations between the prosecution and Donaldson. The sheer volume of documents falling into these categories made it a motion that would take several weeks of the prosecution’s time.
The defense then requested that Donaldson’s appearance be pushed back until the prosecution had disclosed all the correspondence.
In response, the judges partially agreed to the motion on April 20, calling for the prosecution to release three of the eight types of documents.
The day after that decision, the lawyers for both Hassan Habib Merhi and Salim Ayyash filed a second motion intended to exclude a substantial portion of Donaldson’s evidence from the trial chamber.
“The issue of Mr. Donaldson’s purported expertise was never litigated and there was no decision of this trial chamber declaring Mr. Donaldson to be an expert in any area,” the April 21 motion read.
“In the absence of any formal litigation and decision on his expertise, Mr. Donaldson is not entitled to provide any expert evidence, whether in his reports or his upcoming oral testimony,” it added.
Ultimately, the judges of the trial chamber rejected the defense’s motions against the expert witness, handing down a decision on June 2 allowing Donaldson to testify with slight modifications.
The core of the defense’s case against Donaldson was his purported lack of relevant qualifications and experience in conducting co-location analysis – a method of cellular investigation used to link multiple phones to a single user.
A significant portion of Donaldson’s attribution reports used co-location methods to link phone numbers to identities.
According to Wajed Ramadan, spokesperson for the STL, the Rules of Procedure and Evidence for the international trial does not define the term “expert.”
“The case law of other international criminal courts and tribunals provides precedent and guidance as to how a witness is to be qualified as an expert,” Ramadan told The Daily Star. “The case law of international tribunals defines the term ‘expert’ as ‘a person whom by virtue of some specialized knowledge, skill or training, can assist the trier of fact to understand or determine an issue in dispute.’”
The room for ambiguity has seemed to serve as leverage for the defense. Their complaints were met with a firm rebuttal from the prosecution, who argued that Donaldson’s extensive experience in the field, and in Lebanon in particular, qualified him for the job.
The judges also expressed skepticism, questioning the timing of the motion. “[If] the evidence is so crucial and it’s so crucial you receive these documents, why did you wait until the 21st of March to file this motion?” trial chamber president Judge David Re asked the defense during an abbreviated and irregular session that took place during the hiatus. “Why did you wait until almost the last minute before filing that motion, when these reports were disclosed to you, as I understand it, some years earlier?”
Seemingly unperturbed, defense counselor Dorothee Le Fraper du Hellen answered that the defense team had simply not had time at an earlier stage.
Anne-Marie Verwiel, an Amsterdam-based human rights lawyer who has followed the STL closely, suggested that the defense might be buying time.
“The only advantage for the defense I can think of would be more time to prepare for the witness,” Verwiel told The Daily Star. “But of course this remains speculation.”
Donaldson is scheduled to begin his testimony Tuesday.