Hariri tribunal limps along, tainted by dubious motives

A revealing interview was published in the Ottawa Citizen last weekend, related to the investigation of the assassination in February 2005 of Rafiq Hariri, Lebanon's former prime minister. The case is now in the trial phase, before the Special Tribunal for Lebanon, and four suspects, all Hizbollah members, have been indicted.

The interview was with Daniel Bellemare, the Canadian judge who recently stepped down as prosecutor of the special tribunal. Before taking that position, Mr Bellemare was the last head of a United Nations commission set up to investigate the Hariri killing. He replaced Serge Brammertz, a Belgian who is currently the prosecutor of the International Criminal Tribunal for the former Yugoslavia.

The Hariri investigation figured prominently in a book I wrote describing the period in Lebanon after Mr Hariri's assassination.

In researching The Ghosts of Martyrs Square, I spoke to onetime members of the UN team, as well as to Lebanese judicial officials who had collaborated with the international investigators. I learned from them that Mr Brammertz, who took over from the German Detlev Mehlis in January 2006 at a critical moment in the enquiry, had progressed very little during the two years he was in office.

Which brings us back to Mr Bellemare's interview. The former prosecutor did not say much, but what he did say unambiguously implied that Mr Brammertz had indeed not done his job. As the newspaper described it, when asked about the state of the investigation when he arrived in Beirut, Mr Bellemare "pauses, smiles tightly and says, 'Let's say there was a lot of work to do.'"

In 2010, a Canadian documentary accused Mr Brammertz of delaying a key facet of the investigation, namely examination of mobile telephone calls between participants in the crime. This confirmed information that I, too, had heard. Instead, it was a Lebanese military officer, Wissam Eid, who cracked the telecommunications data. Why so sensitive a task was left to the Lebanese, when a UN commission had been set up to undertake precisely such assignments, was never explained. My understanding is that Mr Brammertz wanted it that way.

Mr Eid was later killed, but his conclusions spurred UN investigators to pick up where he had left off. Indeed, telecoms analysis served as the basis for the indictment drafted last year. Mr Bellemare confirmed the essential role played by Mr Eid, declaring that a review of his work "was a very, very key starting point for us".

This is no place to address Mr Brammertz's actions. However, there is a strong case to be made that his failures crippled the UN investigation, and that this has had a decisively damaging impact on the trial. All the suspects named until now were allegedly active at the operational level. But investigators early on concluded that Mr Hariri was the casualty of a vast conspiracy, one that went up the political and security hierarchy in Syria and Lebanon. The number of suspects falls woefully short of those who should be in the dock.

Mr Bellemare has been replaced by Norman Farrell, another Canadian and previously Mr Brammertz's deputy at the former Yugoslavia tribunal. Before leaving, Mr Bellemare reportedly filed an expanded indictment. Because he based his initial indictment on the suspects' telephone use, it's likely that the amended indictment will accuse some or all of those in the initial indictment of taking part in further assassinations or assassination attempts before and after Mr Hariri's killing. New individuals may also be identified, but they will probably be linked to the first batch of suspects.

None of the Hizbollah members are in custody, nor is there any hope that the Lebanese authorities will arrest them. That is why in February the special tribunal decided to pursue a trial in absentia.

Not having the suspects in court could represent a major challenge for the prosecution. Mr Bellemare's case, by his own admission, was based on circumstantial evidence more than on witness testimony. While this is perfectly credible, it is also more difficult to prove in court, particularly if the prosecution and defence become embroiled in technical arguments over the validity of the telecoms evidence.

Here is where the poor quality of Mr Brammertz's work comes in. When he took over from Mr Mehlis, the Belgian was expected to consolidate his predecessor's work by gathering more witness statements. Mr Mehlis never doubted that high-level Syrian and Lebanese officials were behind the Hariri murder. He interviewed senior intelligence figures in both countries, even seeking to take down the testimony of Syrian President Bashar Al Assad. His strategy was to conduct his probe from the top down - to go after principal decision-makers and use their statements to unravel the layers of the plot.

Mr Brammertz abandoned that approach. Instead, he investigated from the bottom up. Not surprisingly, he lost momentum and was soon bogged down in forensic minutiae. The shift left the UN mission in an investigative no-man's land. That is why Mr Bellemare had so little in his files when he took over. Most damaging, Mr Brammertz formulated an indictment without an articulated motive. Suspects are named, but no reason is offered for why they eliminated Mr Hariri.

The special tribunal may yet find suspects guilty. But no one seriously believes that those who ordered the crime, and most of those who facilitated it, will be punished.

This was not always the case. There were high hopes when Mr Mehlis departed that the truth would come out, ending impunity for assassins in Lebanon. Thanks to Mr Bellemare we now know that Mr Brammertz had other ideas.

Michael Young is opinion editor of The Daily Star newspaper in Beirut

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