Lebanon: Indictments II, A Disappointing Sequel?

By Michael Young

The Special Tribunal for Lebanon is lucky to have Sayyed Hasan Nasrallah as a foe. On Tuesday, he again described the institution’s accusations as part of a conspiracy against Hezbollah. Were it not for the secretary-general, whose anxiety tends to confirm the tribunal’s seriousness, observers might have examined more critically the shortcomings in the United Nations investigation of Rafik Hariri’s assassination and those of many others between 2005 and 2008.

There are reports, which may well be true, that further indictments are forthcoming. Last year officials from the tribunal’s prosecution office were privately declaring the indictments would be issued in stages. Any final verdict on the success or failure of the legal process is premature. However, from what we know, there is reason to doubt that the outcome of the trial will be the identification and conviction of all, or even a large number, of those behind the Lebanese killings.

The principal reason for this is that the U.N. investigation altered its strategy in mid-stream between 2005 and 2006. This left the third investigator, and current special tribunal prosecutor, Daniel Bellemare, with little that was tangible when he began his mission.

Under Detlev Mehlis, the first commissioner of the United Nations International Independent Investigation Commission, investigators directed their suspicions at the upper echelons of the Syrian and Lebanese political and security leadership. As Mehlis explained to me in an interview in 2008, “The Hariri case is an unusual one. Usually in investigations you start at the bottom and work your way up. In the Hariri case we started pretty much at the top and worked down. We had an accurate view of how the assassination took place from above, but less clear a view of what happened on the ground.”

Mehlis based his strategy on a number of factors. First, on the deductions of Peter Fitzgerald, an Irish policeman who had prepared a preliminary U.N. report shortly after Hariri’s death. He concluded that the former prime minister had been the victim of a conspiracy involving “considerable finance, military precision in its execution, [and] substantial logistical support.” While he did not name culprits, he described a situation that made it virtually impossible for the Syrian and Lebanese security services not to have known of the crime. He also cast doubt on their intentions by revealing that Hariri’s state-provided security detail had been cut back, and accused the Lebanese security services of contaminating the crime scene.

Mehlis also had his personal experiences to go on in devising his approach to the investigation. He was familiar with the conduct of the Syrian intelligence services from the time he had investigated a bomb attack against the French cultural center in West Berlin. A Syrian diplomat who turned evidence carried the bomb used in that attack from East Berlin, under the orders of Syrian intelligence operatives.

And finally, once his investigation took off, the testimony Mehlis collected further justified a top-down approach. This included the statements of Syrian intelligence chiefs, as well as that of the former Syrian vice president, Abdel Halim Khaddam. All could attest to the centralized, hierarchical nature of decision-making in Damascus.

Under Serge Brammertz, the strategy was reversed. Mehlis’ successor adopted a bottom-up approach, reduced the pace of the police investigation, brought in more analysts, and generally slowed the investigative machinery down. Shortly before his term ended two years later, the commissioner was telling his Lebanese counterparts that he had not substantially advanced in his inquiry; and proof of this was that he had made no new arrests.

If we are to believe a much-discussed documentary produced by the Canadian Broadcasting Corporation last summer, Brammertz was also lax in pursuing the analyses of telephone communications. Reportedly, he waited until late 2007 to bring in a British firm to look more closely at the evidence, after significant progress had been made in evaluating the telecommunications data by Wissam Eid, a Lebanese police officer who was assassinated in January 2008.

While this issue continues to provoke considerable disagreement, two things are undeniable: It made no sense whatsoever for Eid and the Lebanese to be handed the lead in probing by far the most sensitive facet of the U.N. investigation, namely telecoms. The Lebanese did not have the technical expertise to conduct such an exercise, and Brammertz had, earlier, ordered his team to minimize communication with the Lebanese security forces, fearing that they had been infiltrated.

Something else is undeniable: Eid was killed, and he had long anticipated his violent ending. This suggested that the officer had made some sort of breakthrough on telecoms, a view shared by Lebanese judicial figures dealing with the Hariri investigation.

Given these circumstances, when Bellemare came in he most probably found himself lost in an investigative no-man’s land. On the one side he had the testimony garnered by Mehlis pointing in the direction of senior Lebanese and Syrian political and security figures. On the other, he had the fruits of Brammertz’s limited endeavors focusing on the minutiae of the case, an approach that, effectively, undermined Mehlis’ hypothesis by failing to build on it. And yet Brammertz had repeatedly reconfirmed the detention of the four Lebanese generals, implying that he presumed that they were culpable. This mess, many maintain, obliged Bellemare to begin from scratch.

By most accounts the telecoms information was instrumental in preparing the first indictment. But future indictments, if there are any, may be more problematical precisely because they may be damaged by the disconnect between the way Mehlis investigated the Hariri killing and the very different way Brammertz did. So, for example, if Syrians are accused – and Bellemare may have to accuse Syrians because he desperately needs a motive for the crime – he would have to rely on material gathered under Mehlis that was never sufficiently supplemented by Brammertz. That means Bellemare may have to put together a case dependent to a great extent on circumstantial evidence, which is tougher to prove in court.

Much of this is speculation. However, there is nothing reassuring in recognizing that Bellemare, in all likelihood, was obliged to extensively rebuild the Hariri investigation as of 2008, a full three years after the former prime minister was murdered. We may see new indictments, but will these will be solid? Don’t bet too heavily on it.

-This commentary was published in The Daily Star on 21/07/2011
-Michael Young is opinion editor of THE DAILY STAR and author of “The Ghosts of Martyrs Square: An Eyewitness Account of Lebanon’s Life Struggle” (Simon & Schuster), listed as one of the 10 notable books of 2010 by The Wall Street Journal