A Poor Judge in Character

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On September 11, the Special Tribunal for Lebanon (STL) revealed that last July, its prosecutor, Norman Farrell, had submitted a confidential indictment to the pre-trial judge. This was the first indictment since June 2011, when the STL accused four Hezbollah members (one of whom was reportedly killed last year) of alleged involvement in the assassination of Lebanon’s former prime minister, Rafik al-Hariri, in 2005.

When the STL was established in 2009 it was an anomaly. Never before had a special tribunal been set up under United Nations authority to deal with a political assassination. Now, more than twelve years after Hariri was killed, the process continues to grind on, with none of those indicted under arrest and many people legitimately wondering whether the STL experience has actually benefited the UN and international justice.

My information on the UN investigation that preceded the STL, which I published in a book on the 2005–2009 period in Lebanon titled The Ghosts of Martyrs Square: An Eyewitness Account of Lebanon’s Life Struggle, was not reassuring. Legal processes are slow, and the Hariri investigation and trial were never going to be an exception. However, I also learned that there were other reasons for the snail’s pace of the inquiry, which ensured it was far less competent than it should have been.

My main conclusion was that the second commissioner of the UN investigation of the Hariri assassination, the Belgian judge Serge Brammertz (currently the prosecutor of the International Criminal Tribunal for the former Yugoslavia), slowed his investigation, most probably because he sensed that there was no appetite at UN headquarters to uncover the guilty. He also ensured that the most sensitive aspect of his investigation, the analysis of telecommunications evidence, be handed over to the Lebanese Internal Security Forces (ISF), even though Brammertz had sealed off his team from the ISF, fearing leaks.

Indeed, a prominent news program aired by the Canadian Broadcasting Corporation in 2010 corroborated much of my information. However, Brammertz’s reluctance to move ahead on the telecommunications failed to hinder the investigation. Singlehandedly, a Lebanese ISF officer, Wissam Eid, conducted his own analysis and drew a link between the many different telephones used in the assassination. That information, later confirmed by an analysis team appointed by Brammertz only near the end of his term in 2008, served as the basis of the indictment against the Hezbollah members.

Eid would pay for the breakthrough with his life. He was assassinated in February 2008 in a suburb of Beirut. His superior, Samir Shehadeh, was luckier. He had survived a bomb attack in September 2006 while driving towards the city, though four of his bodyguards were killed.

During much of Brammertz’s term between 2006 and 2008, I later learned from people involved in what was going on, there was virtually no progress in the investigation, despite the fact that the commissioner was telling the Security Council the contrary in regular reports. My own misgivings grew in late 2007, largely because I had become friendly with Brammertz’s predecessor, the German judge Detlev Mehlis. In an email exchange with me that November, he expressed grave doubts about the Belgian’s investigation. This was exacerbated by the fact that he had recommended Brammertz to the UN as his replacement, so his reaction could in no way be written off as professional resentment. Rather, it was regret.

Mehlis observed that he did “not see any trial in the foreseeable future.” He based his assessment on the fact that since 2006 no new suspects had been identified by Brammertz and “[n]o visible new elements seem to have been added” to the case. Mehlis concluded that “the perspective does not look good to me, and it seems that out of political reasons a lot of people [outside Lebanon]want it exactly like that. I see no desire to return to the original pace of the investigation.”

In February 2008, I flew to Berlin to interview Mehlis for the Wall Street Journal. By then he was willing to go on the record, as Brammertz was about to leave his post. The German didn’t pull any punches. He still knew people in the investigation, which allowed him to say, “From what I am hearing, the investigation has lost all the momentum it had [when Brammertz took over]in January 2006.” Mehlis added, “Unfortunately, I haven’t seen a word in his reports during the past two years confirming that he has moved forward. When I left, we were ready to name suspects, but [the investigation]seems not to have moved forward from that stage.”

Among those suspects, Mehlis informed me, was the former head of Syria’s military intelligence network in Lebanon, Rustom Ghazaleh. Mehlis had expected Brammertz to arrest Ghazaleh, which he had failed to do, nor had the Belgian taken down the formal testimony of Syrian President Bashar al-Assad, as Mehlis had also intended him to do. In 2015, Ghazaleh was killedby the men of another intelligence chief in Syria, in what would one in a string of deaths of Syrian intelligence officers who likely had been involved in the Hariri assassination. While no connections with the crime were ever proven, the disappearances were highly convenient.

What does all this have to do with the on-going trial today before the STL? Everything. Had Brammertz used the initial momentum of his investigation to make arrests, secure testimony, and advance quickly on the telecommunications analyses, it is very probable that the prosecution would have had a case that was much fuller, much sooner, while keeping the likely culprits off balance. Instead, when an indictment was finally released in 2011, after a long delay given that the prosecution never really built up an adequate file on what had happened, it was mainly focused on the telecommunications, with no decisive witness testimony. Worse, the prosecutor at the time, a Canadian named Daniel Bellemare, offered no motive for the crime, confirming that a full-bodied investigation had not been conducted. Farrell is said to have been incensed with the initial indictment, and later shored it up. But by then the damage had been done.

So while one can applaud Farrell for his continuing efforts to carry through with a trial that may at least identify some of the guilty, the reality is that it will almost certainly be too little too late. Moreover, time has erased any lingering value of the investigation and trial of Hariri’s assassins. They will have no deterrent value, they won’t end impunity, and they won’t convince anyone in the international community to invest in similar tribunals in the future. If anything, the STL’s record has actually made matters worse.

Mehlis summed up the situation best in an interview with Diwan in October 2016, in which I asked him for his thoughts about the trial. He ended his reply with a warning of sorts: “I would favor a universally accepted code of criminal procedures for international cases, which should enable the trials to proceed more rapidly, without endangering the rights of the accused. In my view, justice delayed is justice denied.”

Carnegie-Diwan

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A Poor Judge in Character

by Michael Young time to read: 5 min
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