The Hariri tribunal: A case that time forgot

Those with a long memory may remember the Special Tribunal for Lebanon, which sits in a suburb of The Hague and hopefully, before we all turn to stone, will issue an indictment in the assassination of the late Rafik Hariri. An email from the tribunal was sent out on Wednesday, one of several distributed by the spokesperson’s office in recent weeks.

The email informed us that the Special Tribunal “announces that during his leave in Canada, Prosecutor Daniel A. Bellemare will receive some medical treatment for a few weeks. Although away from the office, he will not be away from the issues… The investigation is progressing and the Prosecutor intends to ensure that the pace of the investigation is not only maintained, but is also increased during his absence.”

We can only wish Bellemare well, whatever ailment he has. However, it is perhaps fitting that he should be seeking medical attention, since his investigation has fallen into a deep coma.

The real question today is whether, given domestic and regional developments affecting Lebanon, the critical mass to ensure that the tribunal is a success has not altogether been lost. In recent months, the prosecutor’s case has suffered two blows – the release of the four generals and the Der Spiegel article on Hezbollah’s alleged participation in the Hariri assassination, which tainted one aspect of the investigation that seemed to have actually progressed in the past four years: analyses of telephone intercepts conducted by Lebanon’s Internal Security Forces.

However, it’s the politics that we should be watching. As much as many of us would like to believe that an international judicial investigation and trial is free from politicization, this conviction is, quite frankly, nonsense. Recall what the United Nations secretary general, Kofi Annan, told Detlev Mehlis, the first head of the commission investigating Hariri’s killing. As Mehlis recalled in a Wall Street Journal interview I conducted with him: “Annan made it clear to me that he did not want another trouble spot. I respected this but he also respected my point of view. Traditionally, there is tension between politics and justice, and I accepted that Annan did not want more problems because of the Hariri case.”

At the start, the Hariri investigation and tribunal were the fruit of concentric circles of consensus. In 2005, the international community, through the Security Council, reached agreement over a UN-led inquiry, and it was able to do so because the situation in Lebanon had changed thanks to the success of the Independence Intifada. The international and the local situations fed off one another, putting Syria on the defensive. On the eve of his departure, Mehlis was preparing to arrest Syrian officials, but the short time he had left mandated that the decision be implemented by his successor, Serge Brammertz.

Brammertz did nothing. He, too, probably heard from Annan that the UN did not want another trouble spot, but this time, I suspect, the commissioner listened. For two years there was little discernible progress in his work, as he reportedly replaced a large number of investigators with analysts. Brammertz unnecessarily reopened the crime scene, only to reach the same conclusions as Mehlis. This was all enough to blunt the momentum of the Hariri investigation. By late 2007, France, initially one of the twin pillars, with the United States, of support for Resolution 1559 and the UN investigation, was looking to normalize relations with Syria. The Obama administration also promised engagement with Syria when it took office in 2009, and just two weeks ago Washington announced that it would return its ambassador to Damascus.

There was a moment between 2006 and early 2009 when Saudi Arabian and Egyptian hostility to Syria suggested that the tribunal might even retain the interest of major Arab states. However, King Abdullah’s “reconciliation” with Bashar al-Assad at the economic summit in Kuwait last January confirmed how the Arabs, never enthusiastic about the Hariri investigation in the first place, were looking beyond taking Damascus to court. Reasons of state dictated that efforts be made to draw Assad away from Iran – and anyway, why would the Arabs take a principled position on Syrian killing when they had never done so in the past, and when most Security Council members had already lowered the heat on Syria?

Now the domestic side of support for the tribunal has all but disintegrated. Saad Hariri, the prime minister designate, remains publicly confident about the trial’s outcome, but he probably knows that justice will fall between the cracks of regional priorities. He’s a realist, and may ultimately accept what the tribunal offers, which until now is nothing at all. Hariri also has little Lebanese support at this stage to rely upon. Walid Jumblatt appears to have given up on the tribunal, officially fearing it might bring about a Sunni-Shia conflict, but really because his priority today is to reconcile with Syria. Hariri’s Christian allies back him up, but ultimately they don’t count for very much. As for Hezbollah, and to a lesser extent the Aounists, long ago they signaled how unenthusiastic they were about seeing genuine progress in the Hariri affair.

Only movement from Bellemare, superhuman movement, might have a chance of kicking some life into the trial machine. But that’s not going to happen. The prosecutor doesn’t have a suspect in hand; his case, whatever his statements to the contrary, is in worrisome limbo after four years of investigation; and one must really wonder if he and his team have the competence to try a complex political murder of this nature. Nothing, absolutely nothing, encourages us today to be confident of the outcome.