Syria’s friend or its prosecutor?

Saad Hariri’s trip to Damascus this past weekend sent up a cloud of ambiguous feelings, very few of them particularly reassuring. Syria has substantially recouped its losses in Lebanon in the past four years, and if Hariri’s handshake with Bashar al-Assad did not underline that fact, then nothing will. However, one aspect of Syria’s political return has been little discussed, namely what “reconciliation” with the Assad regime means for the Special Tribunal for Lebanon investigating Rafik Hariri’s murder.

The most commonly heard answer is that the tribunal is going ahead with its work and will remain impartial and resistant to political pressures. But how true is that? We tend to forget that the tribunal is a mixed international-Lebanese body, and even if we assume that the international judges will preserve their independence, can we say the same thing of the Lebanese judges now that their president, prime minister, speaker of parliament, and most other politicians, are staunchly defending improved Lebanese-Syrian ties? Judges don’t function in a vacuum. They have to think of their safety as well as of their career as much as anybody else.

According to the statutes of the Lebanon tribunal there are three judges in the trial chamber, one of whom is Lebanese. Of the five judges in the appeals chamber, two are Lebanese. There is also a Lebanese alternate judge who is entitled to sit in on each stage of the trial process, and who can replace the trial judge if that becomes necessary.

While the decisions of the three judges in the trial chamber are taken by a majority vote, because the process will involve a crime that occurred in Lebanon, the relative authority of the Lebanese judge will undoubtedly be enhanced. On top of that, the Lebanese judge in question, Ralph Riachi, is the deputy president of the chamber; in other words it will be important for the international judges to ensure there is a consensus with Riachi so that decisions don’t appear to be imposed by them, and specifically by the international community through them as its representatives.

This is not to cast doubt on the credibility of Riachi, or that of the Lebanese deputy prosecutor, Joyce Tabet. Both are highly regarded, and Riachi played a key role in negotiating the tribunal’s statutes, along with Judge Shukri Sader. However, judges are not supermen, and Riachi and Tabet know well what it was like during the years of the Syrian presence to maneuver through a judiciary infected with corruption and political favoritism. Integrity notwithstanding, it will not be easy for the Lebanese to ignore that, back home, their careers and the security of their families and friends may effectively be in the hands of Syria and Hezbollah, who have been systematically hostile to the Lebanon tribunal.

Once Daniel Bellemare, the man who will prosecute Hariri’s killers, issues an indictment, the Lebanese state will be caught in an impossible judicial and political dilemma. Beirut will find itself officially on the side of a prosecution that may well point the finger at Damascus, the only serious culprit in the killing of the former prime minister, even as the state and its institutions substantially fall back into Syria’s tightening grip.

And if Bellemare finds that Hezbollah played a role in the crime, that dilemma would only be compounded tenfold, so that it would almost certainly affect the ultimate outcome of the trial process. We can expect Riachi and Tabet to feel considerable heat from Beirut to shape the outcome of the indictment, and given its repercussions for Lebanon’s stability they may be more inclined to go along than their colleagues.

Might they resist? They might, and it would be to their credit. But it would also take a great deal of nerve, assuming Bellemare puts together a strong case. International tribunals (and even more so a mixed tribunal) are just as sensitive to political realities as national tribunals, often more so.

Then we have national interests. There is a mistaken belief that the Lebanon tribunal will operate with Chapter VII authority. In reality, as Shukri Sader explained in a paper read at the Yale Law School in October 2008, the tribunal was only set up under that authority, but may require United Nations Security Council resolutions to force states to comply with its requests if necessary. The Security Council is far more divided today than it was in 2005, when the investigation mechanism was set up. It is very difficult to imagine that there would be easy agreement between the five permanent members, particularly with a reluctant Lebanon now sitting on the council, to force Syrian compliance with the prosecution’s demands.

Politics as well as personal concerns will greatly determine what happens when Bellemare finally issues an accusation. To assume that the Lebanon tribunal will avoid the ensuing minefield is naïve in the extreme.