Reading between the lines of Detlev Mehlis

Reading between the lines of Detlev Mehlis
By Michael Young
Daily Star staff
Thursday, March 20, 2008

Detlev Mehlis did not say much that was new on Tuesday evening, when he was interviewed by May Chidiac on her weekly program for the Lebanese Broadcasting Corporation. The German judge repeated much of what he told me in an interview for The Wall Street Journal What-Murdoch-Must-Do-With-Dow-Jones published last January. However, it was Mehlis' first real opportunity to speak directly to the Lebanese public, and the exchange provided a useful occasion to revisit some of his more significant recent disclosures.

The Mehlis who spoke with Chidiac was awkwardly diplomatic about the advances made by his successor, Serge Brammertz, in the Hariri investigation. In his earlier interview with me, the German had been far blunter: "I haven't seen a word in his reports during the past two years confirming that he has moved forward." On LBC, while Mehlis repeated his misgivings, he added that "maybe [Brammertz's] way is the right way. He is an experienced prosecutor, so he may have had his reasons" for failing to provide more information on his progress.

Even if Mehlis carefully danced around the issue to avoid undermining the ongoing UN inquiry, a crucial question today that no one has been able to adequately answer is the following: How did Brammertz build up his case without having publicly identified a single new suspect in two years? After all, to unravel networks of decision-making and participation in a crime, it is generally necessary to arrest one person, who then leads an investigator to another, who will point the finger at a third, and so on. And if Brammertz did find new suspects, why did he not name and arrest them?

Mehlis' skepticism has been heightened by Brammertz's reference to "persons of interest" in his reports. A "person of interest" is definitely not a suspect, the German insists. That is unless Brammertz used that vague, antiseptic formulation to avoid being forced to order arrests, in the belief that this would complicate his investigative strategy.

But what strategy sidesteps employing arrests to open new doors of exploration? Mehlis didn't tell Chidiac this, but he told me that had he known earlier that the former Syrian vice president, Abdel-Halim Khaddam, was about to defect from Syria and turn against the Assad regime, he would have extended his stay as commissioner for some months. Mehlis did interview Khaddam, but didn't have enough time to use his revelations to recommend the arrest of Syrians other than those he had expected Brammertz to detain. Khaddam's break with the regime came after his late December 2005 tell-all interview with Al-Arabiyya, by which time Mehlis was preparing his return to Berlin.

So while Brammertz had a very different approach than Mehlis, the nagging uncertainty remains. Because Brammertz didn't arrest anyone in two years, did he miss golden opportunities to discover more? Did he allow suspects to roam freely? Did he inordinately rely on technical and forensic evidence, as well as witnesses, in building his case, to the detriment of uncovering facts about those involved in the killing itself? We won't know until the new investigator, Daniel Bellemare, hands his findings over to the Hariri tribunal and it decides whom to accuse.

Mehlis did mention the four generals who are still in prison, and one could immediately see why Akram Azoury, the lawyer of one of the four, Jamil al-Sayyed, was so displeased with the interview being aired. Mehlis essentially backed the continued detention of the generals, arguing that according to his reading of Lebanese law, a judge had the right to keep suspects in preventive detention if that was deemed necessary. He went on to tell Chidiac that the four were arrested because there were strong indications that they were preparing to flee Lebanon. That rationale still applies today, implicitly justifying their continued incarceration. Mehlis also reminded Chidiac that a Palestinian extradited from Lebanon in 1991 for his involvement in the LaBelle discotheque bombing was detained for seven years while awaiting sentencing in Berlin, and that the decision was upheld by the European Court of Human Rights.

One issue Chidiac did not develop, however, was the matter of jurisdiction. In his Wall Street Journal interview, Mehlis stated, "I fear that suspects will end up in a judicial no-man's land, with Lebanon claiming they are under the UN's jurisdiction, and the UN saying that they must remain under Lebanese jurisdiction." This phrase is not as anodyne as it sounds. If the UN fails, for example, to take the four generals into custody before their sentencing, then the Lebanese judiciary will have to continue to legally validate detaining them. That may be doable in the case of most suspects, but perhaps not all, bringing about the latter's temporary release. In the case of the more important suspects, this potentially can harm the investigation.

A third idea Mehlis developed was that of responsibility. He remarked that the Hariri assassination was a case where we have a clear picture of who ordered the crime, but not of those on the ground who planned and triggered the fatal explosion. Chidiac correctly interpreted this as an accusation directed against Syria. But in his earlier interview, Mehlis made a broader point by noting, "As a prosecutor you can't prosecute governments and countries; you prosecute individuals." In the end, it is what Daniel Bellemare can prove in court that will stand - not what most people think about who killed Rafik Hariri. That is why it seems unrealistic to expect the beginning of a trial soon after the June deadline set for the UN commission's work. Bellemare is still connecting the dots, and it is not clear that he can finish doing so within three months.

Mehlis expressed optimism that the tribunal would identify the guilty, adding that even heads of state would not be protected. Amid recent press reports that Egyptian President Hosni Mubarak was still waiting for Syrian President Bashar Assad to present him with proposals on the Hariri tribunal (itself a worrying sign that Arab leaders care little about justice in the Hariri case), you have to wonder why that alleged delay? It could mean there is no political deal on the tribunal the Syrian regime would ever be able to contemplate short of the institution being abolished.

If so, that might explain why Mehlis is adamant that the culprits will be punished. Such Syrian intransigence would be thoroughly suicidal. But even if Mehlis is hopeful that the case he worked on in 2005 can yet be salvaged, plainly his effort to speak directly to the Lebanese people on Tuesday evening was his way of improving the odds.