Are we fools to expect indictments soon?

The furor continues over the recurring attacks directed against the Special Tribunal for Lebanon by Hezbollah’s secretary general, Hassan Nasrallah. The prevailing view in Beirut is that the prosecutor, Daniel Bellemare, will issue indictments this fall, and that these may point the finger at low-level Hezbollah members.

Politics aside, how likely is it that indictments will come before the end of 2010? Leading foreign diplomats in Beirut believe they will. Lebanese politicians believe so, too. The media is electric with information and disinformation on the potential consequences. However, no one has stopped to ask whether Bellemare actually has enough to issue airtight legal accusations.

Then comes news that this coming fall investigators will be replicating the explosion that killed Rafik Hariri at a military base in Bordeaux, an item confirmed by the Special Tribunal itself. If investigators are still engaged in analyzing, or re-analyzing, the bomb blast, this is either chaff to cover for the absence of any significant progress or it might imply that there is uncertainty surrounding the original findings, which means the investigation needs time to reassess. This makes it more difficult to assume that indictments will land this year.

We also have to bear in mind something else: Nothing stipulates that Bellemare must necessarily issue indictments at all. He may well do so, but that is not a foregone conclusion. Ultimately, the prosecution’s case will be determined by the specific evidence Bellemare has, and while he must have a clear idea of how Hariri was murdered, there are wide gaps that are the result of the failure of his predecessor, Serge Brammertz, to carry out a police investigation between 2006 and 2008, particularly in Syria, which controlled security in Lebanon at the time the former prime minister was assassinated.

Here’s what we know, or think we know. Investigators allegedly have telephone analyses indicating that one of the members of the circle of individuals observing Hariri’s movements on the day of his assassination (and even earlier) communicated with a Hezbollah official. We also know that several months ago investigators came to Beirut to interview a number of individuals, most of them Hezbollah members. Some showed up, but apparently those who might be named suspects did not, and their whereabouts remain unknown.

We also know that when the tribunal began operating last summer, Bellemare did not have enough to indict the four generals, even though he and Brammertz had repeatedly reconfirmed their detention when asked by the Lebanese judiciary. This suggested, at the least, that Brammertz and Bellemare had suspicions about the generals’ guilt, but did little to consolidate the legal charges against the four.

Since that point the investigation does not appear to have made major strides, while Bellemare has asked Western governments to lend him additional investigators. The prosecutor could have telephone data, perhaps phone taps, but also little testimony from those involved in the crime or who might shed light on it. It’s not certain whether this constitutes enough to prepare indictments. An effective indictment must establish a hierarchy of decision-making, illustrate who told whom to do what, then determine who did what when.

We know Bellemare is incapable of elucidating all of that today because tribunal representatives have declared in foreign capitals that the prosecutor intends to publish his indictments in two stages. In other words, he seems to be planning for a first wave of indictments to act as a wedge allowing him to issue a second wave that is more comprehensive. This is a risky strategy. It confirms that Bellemare doesn’t have enough information to issue a hard legal blow in one go; and the presumption that a first flourish of indictments will facilitate a second is by no means guaranteed, particularly if the Lebanese state, fearful of the repercussions of the opening indictments, slows or suspends its cooperation with Bellemare as a consequence.

But once again, this begs the question: If Bellemare has been unable to put together indictments until now, what does he need to add to his file to be able to do so in the coming months? The telephone information has been available for a long time, so it’s unlikely that investigators have made a breakthrough on that front. Bellemare collected little testimony from those persons he recently sought to question, and even if he does have enough to indict some participants, plainly he saw the interviews as necessary to bolster his case.

So, to put it bluntly, Bellemare appears to have an incomplete case, which he hopes to energize through his strategy of a two-phase indictment process. He also possibly has questions about the bomb explosion that killed Hariri and those with him. That makes you wonder whether investigators are again checking whether the bomb blast was an above-ground explosion carried out by a suicide bomber, or a below-ground explosion, which would presumably implicate the team observing Hariri in all phases of the assassination.

In May, the president of the Special Tribunal, Antonio Cassese, told the Daily Star newspaper that he expected indictments to be filed by the end of this year. A day later he retracted his statement, surely at Bellemare’s request. Cassese’s efforts to raise the heat on the prosecutor show that he is worried about the future of the tribunal, particularly its financing, if indictments don’t arrive this year.

If Cassese is worried, and if Bellemare told the tribunal president to withdraw his comment, you have to wonder on what grounds everyone in Lebanon seems so confident that indictments are imminent. The latest rumpus could be much ado about nothing.