Cassese's optimism hides real worries

There was excitement in Beirut this week, after the Lebanese heard about the 60-page report issued by the president of the Special Tribunal for Lebanon, Antonio Cassese. The document, describing the tribunal’s progress during its first year, was well-structured, informative about the institution’s legal framework, and elegant, with erudite references to Hegel, Voltaire and Plato. But it’s not at all obvious why so many people managed to read good news into the text.

Cassese did express optimism, writing that the tribunal had made “significant progress towards building a case which will bring perpetrators to justice.” However, the president also added that “much remains to be done, and the unwavering support and continued cooperation of Lebanon and all other States, as well as donor Countries and relevant organizations, are needed in order for the [prosecution] to successfully fulfill its mandate.” Unwavering support is something states rarely give, particularly to a tribunal whose work has significant political repercussions, so Cassese was sounding a cautionary note.

Cassese wrote that the assassins of the former prime minister, Rafik Hariri, “carried out the attack with the complicity of a wider group.” Nothing new here. Recall that in his first report in March 2006, the then commissioner of the United Nations investigation, Serge Brammertz, uncharacteristically provided real information when he wrote: “The Commission believes that there is a layer of perpetrators between those who initially commissioned the crime and the actual perpetrators on the day of the crime, namely those who enabled the crime to occur.”

International investigators, particularly the prosecutor of the tribunal, Daniel Bellemare, know very well who was behind the killing of Hariri, and how it was done. Cassese’s report, if one reads carefully, confirms this. We know that there was someone who commissioned the crime, and it doesn’t require much imagination to say who it was. We know there was a suicide bomber who actually detonated the device. And we know there was an intermediate circle of enablers observing the former prime minister’s movements who communicated only between themselves. Someone in that group apparently made an unauthorized telephone call that broke the closed circle, pointing investigators in the direction of specific individuals. How do we know this? From the mass of confirmed information out there, through the UN commission’s reports, and because two Lebanese officers in charge of analyzing telecommunications intercepts, Samir Shehadeh and Wissam Eid, were the victims of assassination attempts, one of them successful.

As Cassese implies in his report, it is the intermediate group of enablers that is posing the most problems for tribunal investigators. “[T]he authors of terrorist crimes generally make up small and secretive cells, which sometimes act in clandestine fashion. Hence, it is extremely difficult to identify the perpetrators of a specific crime.”

More disturbing is that little information appears to exist for indicting those who commissioned the crime. Cassese’s report indicates that the attention is on the “secretive cell” of enablers-perpetrators, not on Syria, which alone had the influence and motive to organize a conspiracy to eliminate Hariri. One reason is that the testimony of Mohammad Zuheir al-Saddiq has been discredited; but also that Serge Brammertz never moved beyond that setback to pursue an aggressive police investigation inside Syrian territory, although his mandate permitted this and his hypothesis for how the crime was committed demanded it.

The tribunal president also tries to explain that the Lebanese need to be patient about the timeframe for indictments. “As a rule, at least two or three years elapse between the beginning of criminal investigations proper by an International Tribunal’s Prosecution and the initiation of trial proceedings,” he writes. That is a sleight of hand. Investigators have had almost five years to look at Hariri’s assassination, with no sign of indictments coming soon, even if it’s true that the first investigator, Detlev Mehlis, was not preparing a formal legal case.

But worse, international tribunals do not generally find themselves without any identified suspects this late in the game. Suspects in custody are the backbone of an investigation. They are the ones who can provide information about the nuts and bolts of a crime. As Cassese admits, the problem with terrorist crimes is that it is difficult for investigators to gather information on the structure and chain of command of the perpetrators, because they are so cautious. If Daniel Bellemare doesn’t have enough to prepare indictments now, why should we expect this to change in the future?

We understand from Cassese’s report that in the coming months Bellemare will try to garner more information about the enablers and the suicide bomber to indict. This will require the assistance of the Lebanese authorities, who, according to the agreement reached between the Lebanese judiciary and the tribunal, “may not refuse to cooperate on any of the grounds usually applicable in inter-State legal assistance or extradition treaties (such as non-extradition of nationals, political offence exception, double criminality requirement or [double jeopardy]).” And, according to the tribunal’s statutes, provision is made for conducting trials in the absence of the accused.

In other words, for Bellemare to make headway he must ask the Lebanese to bring in individuals either who can shine a light on the cell of enablers or who actually belonged to it. Cassese doesn’t name names, but it’s very easy to guess to whom he is referring. There is one group that fits the profile he outlines, and we can be confident that the ­­Lebanese authorities will reply that they are unable to implement Bellemare’s summons. This leaves the prosecutor with the option of indicting suspects in absentia, although the disadvantage there is that it will be nearly impossible for him to subsequently uncover the chain of command in the crime. It may also provoke civil discord in Lebanon.

This makes for an odd disconnect in Cassese’s report. He tries to reassure the Lebanese that the delay in an indictment is normal, that these kinds of cases take time. But in the end, the obstacles he describes are structural, having little to do with time. If Bellemare cannot bring in certain suspects today for questioning or arrest, it’s doubtful that he will be able to do so tomorrow either. The prosecutor is not in the dark about what happened. But he needs the key to unlock an indictment, and he needs the Lebanese to help him find that key. The Lebanese will most probably not do so, leaving Bellemare only with bad choices.

That’s why Cassese’s optimism seems contrived. The tribunal president knows what’s wrong. He has to somehow induce the Lebanese to do what they have no intention of doing. Despite the claims to the contrary, Lebanese and regional politics will profoundly shape what lies ahead. Cassese’s report essentially admits this, albeit in the subtle language of the jurist. The Lebanese have no reason to feel especially upbeat.