On Thursday, nearly nine years after a bomb killed former Prime Minister Rafiq Hariri and 21 others, four men accused of taking part in the assassination will be tried in absentia by an international court created in 2009 for that very purpose.
NOW offers a guide about what to expect from the opening of the first trial at the Special Tribunal for Lebanon.
The trial against Mustafa Amine Badreddine, Salim Jamil Ayyash, Hussein Hassan Oneissi, and Assad Hassan Sabra will kick off with opening statements from the prosecution, legal representative of the victims, and defense lawyers for Badreddine and Oneissi.
At a recent seminar for journalists covering the court in Lebanon, STL Chief of Outreach and Legacy, Olga Kavran, explained that the opening statements can best be described as “a summary of what they intend to prove in court.”
The prosecutor’s office has said it expects opening statements from the prosecution to last one day or possibly one day and a half. Proceedings are likely to begin around 9:30 a.m. and last until 5 p.m. starting from Thursday (the court will break for lunch and the judges may decide to add extra breaks or alter the schedule as they see fit).
The legal representative of the victims will offer an opening statement after the prosecution, followed by the defense teams for two of the accused – Badreddine and Oneissi – (the other two accused can still decide to speak, or can hold off on offering opening statements until they present their case, after the prosecution presents its case).
The prosecutor’s cases are pretty well known at this point. It is outlined both in the indictment against Badreddine, Ayyash, Oneissi, and Sabra as well as in the prosecutor’s pre-trial brief. In essence, the prosecution is resting its case on an analysis of telecommunications data that, it believes, links the four to the crime.
Throughout the trial, the prosecutor will be attempting to prove, beyond a reasonable doubt, its case against the accused. The defense has no such burden. Teams of defense lawyers appointed for the four accused will attempt to raise reasonable doubts about the prosecutor’s case. They are not required to suggest who they believe committed the crime, they will merely be arguing their clients did not.
In the indictment, the prosecutor specifically mentioned that Badreddine, Ayyash, Oneissi, and Sabra “are supporters of Hezbollah, which is a political and military organization in Lebanon.” It will be interesting to see just how much the prosecutor makes of the Hezbollah connection.
It is interesting that two defense teams will be making opening statements. Because of a code of conduct all lawyers before the STL have signed, defense lawyers have not spoken much in public about what they plan to argue in court. Some of the motions and documents defense lawyers have filed during pre-trial proceedings, however, suggest a large part of their defense will rely on questioning the reliability and accuracy of the prosecution’s telecommunications analysis. (Be sure to check NOW’s live coverage of the defense teams’ opening statements.)
Submission of evidence
Once the opening statements end, the prosecution will begin presenting its case and the evidence it plans to submit to support that case. In pre-trial conferences, the prosecution indicated it will present its case in three parts: What happened when the bomb went off on February 14, 2005 and what were the repercussions (i.e., who died and was injured), what evidence the prosecution has as to the preparations for the attack (i.e., monitoring Hariri, buying the van used in the explosion, etc.), and who the prosecutor believes is responsible for the attack based on the evidence (i.e., Badreddine, Ayyash, Oneissi, and Sabra).
Following the prosecutor’s presentation – which will take months, not weeks – the defense will be able to present its case. That said, as the prosecution calls witnesses, the defense will be allowed to cross examine them, if any or all defense teams so choose. Additionally, the judges will be able to question witnesses as they choose (though the trial chamber has indicated they will reserve questions until defense and prosecution are done questioning witnesses).
The trial chamber judges must still approve a list of witnesses the prosecution plans to call before it begins presenting its case. Most are expected to appear in court, but judges may also allow written statements, and some witnesses may be subject to protective orders.
As Kavran, the STL’s chief of outreach and legacy, recently explained, judges have three options to allow a witness to testify yet remain anonymous. A witness subject to protection may openly testify in court but his or her name may be kept from the public; a witness may testify in court from a position where the public cannot see his or her face and his or her voice may be distorted; finally, if a witness is deemed to need extra protection, he or she may testify only before the people present in the court – the public would never know what she or he said. Judges decide which measures to allow for which witnesses.
One group of witnesses unlikely to appear in court are the so-called “false witnesses.” The “false witnesses” were people accused of lying to a UN investigation committee that preceded the tribunal. The STL appeals chamber ruled in the past that the court has no jurisdiction over these people and will not pursue cases of perjury against them, as they did not allegedly lie to the STL.
The prosecution did not really address the “false witness” issue a few years ago when it was almost all anyone in Lebanon was talking about. The prosecution then maintained – and still does – that it will not bring to court evidence or witnesses that it does not believe to be entirely reliable.
On July 31, 2013, the pre-trial judge confirmed a separate indictment against Hassan Habib Merhi. Since then, the tribunal has ordered his trial in absentia. The prosecution wants to join the two cases and try them at the same time. The trial chamber has not decided whether to go ahead with joining the cases, but indicated in a pre-trial conference on January 10 that it will likely approve such a move.
If the cases are joined, Merhi’s lawyers – which have been appointed by the STL’s Defense Office – will need time to catch up to speed. This will require an adjournment in the trial, meaning no new proceedings will take place. The prosecutor suggested scheduling the adjournment after it finishes the first part of its case – which is expected to last around two weeks. This means that by early February, the court may halt proceedings for a few months as Merhi’s lawyers prepare.