Lebanon News

Frustration of STL defense reflects larger challenges

Sentencing Hearing in the contempt case against Akhbar Beirut S.A.L. and Mr Ibrahim Mohamed Ali Al Amin (Case STL-14-06) - 29 August 2016. (The Daily Star/STL, HO)

BEIRUT: With the defense teams for the Special Tribunal for Lebanon expressing frustration over the reliance on special investigator Gary Platt for evidence on telecoms records, legal experts and academics say it shows larger obstacles in proceedings. Platt, who has testified repeatedly at the STL, was called back to the stand for extended examination from Jan.18. The expert in covert phone networks offered details on call records allegedly marking the movements of the five indicted suspects linked to Hezbollah accused of organizing the Feb. 14, 2005, Beirut bombing that killed former Prime Minister Rafik Hariri and 21 others.

From the beginning of the most recent examination by prosecution trial attorney Nigel Povoas, defense counselors have objected to his methods on a daily basis. The defense repeatedly criticized the prosecution for not providing them with a full report of evidence to be discussed during the day’s hearing ahead of sessions. Defense teams say that the failure to inform them beforehand has left them unable to adequately prepare a rebuttal.

Furthermore, defense counselors have alleged that Povoas’ manner of questioning Platt has encouraged the investigator to express his opinion or to speculate as to the content of recorded calls, rather than remaining objective and within his area of expertise.

The defense claimed that trial chamber judges have not sufficiently intervened on their objections to enforce neutrality.

“I’m sorry, I know I persist and I don’t like sounding like a whiner but judge, this has really presented a problem for us and every day,” defense counselor Thomas Hannis, representing the interests of Salim Ayyash, said during the Feb. 21 hearing. “These are the same objections I’ve made before. You’ve heard my arguments before and skipped those,” he later added.

When asked why judges have remained conspicuously silent in the face of daily objections, Wajed Ramadan, spokesperson for the STL, noted that an entirely separate proceeding takes place in parallel to the trial chamber unbeknown to viewers.

“There is a court management services section that manages all filing requests [such as objections] and sends it to parties named in the filings,” she said.

CMS were also employed by previous international tribunals to provide “administrative, judicial and logistic support.” Despite the fact that judges seemed to have remained relatively quiet regarding objections, Ramadan told The Daily Star that much of the fine-grain details of the STL occurs in the parallel proceeding.

“This is really difficult for us to explain because people who don’t follow the trial don’t physically see this. But, really we’re doing everything we can to make things as efficient as possible,” she said.

While the prosecution and defense teams were unable to comment to The Daily Star on current proceedings, legal experts and academics speculated that recent contention is a reflection of larger challenges the STL has faced since it began in 2009.

“This is [a rare instance] in an international court which has permitted trial in absentia, so of course it affects the [defense’s] strategies in the courtroom,” Shafik Masri, international legal expert and former lecturer in International Law at the American University of Beirut, told The Daily Star. Trying indicted suspects in absentia is just one of the STL’s many unique challenges.

Philippe Larochelle, a former counselor representing Hussein Oneissi, looked back on the difficulties of representing someone he never met.

“The main frustration was the absence of clients. Of course it wasn’t something that surprised me, but what surprised me was how artificial the proceedings became,” Larochelle told The Daily Star.

“It’s way too long, way too artificial. You lose sight of what you’re there for.”

Furthermore, without defendants to discuss accusations or strategy with, the defense teams are left largely in the dark regarding the chronology of events to offer effective rebuttals in court.

“What is there for us as the defense, what are our bargaining chips? We can’t offer anything, we are gagged,” Larochelle explained.

Lea Brilmayer, professor of International Law at the Yale Law School, agreed with Larochelle. She theorized that working for “nonexistent clients” may leave defense lawyers with little evidential substance to provide an alternative narrative and force defense lawyers to revert to procedural objections in order to contest the prosecution.

“It is common for lawyers to use procedure to make objections,” Brilmayer said. However, she did admit that there was precedence for this kind of defense strategy. “My impression is that Americans [in particular] are very fond of making procedural objections to try and create the impression that they were treated unfairly.”

Hannis, one of the more vocal defense counselors is an American. Brilmayer noted that the distinct style of U.S. courtrooms norms may not be well received in an international courtroom, ultimately working against them.

“It could also be ... the influence of style. American lawyers act like the way you see on American TV. Someone says ‘XYZ’ and the lawyer on the other side jumps up and says ‘I object.’ This is considered inappropriate behavior outside the American system. It’s very theatrical.”

Like all international tribunals, lawyers coming from both civil and common law backgrounds are forced to adapt to a new statute.

The STL had previously confronted this problem outside the courtroom when head of defense Francois Roux faced difficulties convincing Lebanese authorities to allow defense counselors to investigate in preparation for cross-examination. Differences in judicial procedure prevented the international tribunal from properly advancing.

Despite challenges and criticism of the STL, Nadim Shehadi, professor at Tufts University and associate fellow at the Chatham House, said that the trial remained relevant and not only important for Lebanon but also for future international tribunals as well.

“The STL has already achieved a lot of its objectives and even more in terms of politics in Lebanon,” he told The Daily Star. Reflecting on how late Rafik Hariri’s son, Prime Minister Saad Hariri, managed to work with the group linked to the murder, he said that “the only reason ... Hariri can sit in the same Cabinet as Hezbollah is because the assassination of his father is something to be determined by the international community. So it’s a convenient tool that has prevented conflict in Lebanon.”

Looking more broadly, Shehadi added that because the field of International Criminal Justice is still young, the STL continues to “break a lot of ground” in international jurisprudence. The trial’s conclusion, the professor noted, would certainly set a lot of new precedence, no matter the outcome.

A version of this article appeared in the print edition of The Daily Star on March 04, 2017, on page 3.




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