The Hariri tribunal is so inept, it almost seems deliberate

Recently, one of the men arrested in the investigation of the 2005 assassination of Lebanon’s former prime minister, Rafiq Hariri, pursued a revealing legal manoeuvre. He demanded that the special tribunal set up by the United Nations a year ago to try those suspected of the murder show him the evidence used to arrest him.

The man is Jamil alSayyed, the former head of Lebanon’s General Security directorate and one of four generals arrested on the advice of United Nations investigators a few months after the Hariri murder. Mr al Sayyed spent four years behind bars, until he was released last year along with his colleagues by the tribunal prosecutor, Daniel Bellemare, because there was not enough evidence to indict them. Mr al Sayyed’s request shows how onetime suspects are now willing to take the tribunal on, largely because it has lost all momentum.

Mr al Sayyed’s innocence is a matter of conjecture. He was a main cog in the Syrian-dominated security network in Lebanon during the time Damascus ruled directly over the country. It was this network that investigators believe was behind Mr Hariri’s killing. The detention of Mr al Sayyed and his associates was repeatedly reconfirmed by the body set up to investigate the killing, the United Nations International Independent Investigation Commission (UNIIIC), whose last head was Mr Bellemare, before he became tribunal prosecutor. Yet it is also true that the investigators did not turn their suspicions about Mr al Sayyed into indictable offences. Therein lies the tribunal’s difficulties.

Five years after the Hariri assassination, we are nowhere closer to seeing the guilty accused. Back in 2005, the decision of the UN Security Council to set up an investigation of the Hariri killing was an innovation. It was the first time that the international organisation had looked into a political assassination, the rationale being that this would help deter such crimes in the future. UNIIIC was set up, and its first commissioner was Detlev Mehlis, a German judge who had investigated high-profile terrorist crimes in former West Berlin, including the 1986 LaBelle discotheque bombing.

Mr Mehlis had no doubt that the Hariri assassination was ordered by Syria, even if Lebanese individuals or groups also participated in the operation. His team began a police investigation, and interviewed Syrian officials and intelligence officers inside Syria and abroad. On the eve of his departure in December 2005, Mr Mehlis even recommended to his successor, the Belgian judge Serge Brammertz, that he arrest the former head of Syria’s military intelligence apparatus in Lebanon.

Mr Brammertz never did so. In fact he arrested no one during his two-year tenure. While this may have been because one of Mr Mehlis’ witnesses appeared unreliable, there were far deeper problems in the Belgian’s investigation. He cut back on police officers and added analysts. Analyses can address details of a crime, but only a police investigation, which entails taking suspects into custody and using their testimonies to unravel the decision-making hierarchy, can identify the guilty. In fact, Mr Brammertz did not investigate much at all before handing over to Mr Bellemare.

Was this intentional on Mr Brammertz’s part? I contacted him in April of last year for a book I was writing to give him an opportunity to respond to my criticisms of his work. I also wanted him to reply to allegations levelled at him by Mr Mehlis in an interview I conducted with the German for The Wall Street Journal. Mr Brammertz declined. However, it was difficult not to notice that his appointment after serving on the Special Tribunal for Lebanon – namely, as prosecutor for the International Criminal Tribunal for the former Yugoslavia – was a promotion by the UN, even though his performance in Beirut hardly merited such an accolade.

Perhaps that was precisely what the UN liked in Mr Brammertz. As Mr Mehlis later recalled, when he met Kofi Annan before starting his mission, the UN secretary-general told him that “he did not want another trouble spot”. Mr Mehlis did not oblige. He raised the heat on Syria and although he received Security Council backing, which strengthened his mandate, the UN bureaucracy must have winced at the tensions resulting from these confrontations.

Mr Bellemare has been a different kettle of fish. A Canadian judge, he had no experience of terrorist crimes when he came in. His tenure as commissioner, then as prosecutor, has produced little apparent progress. He seems to have information pointing to on-the-ground involvement by Hizbollah in Mr Hariri’s elimination, but two key questions remain: Does Mr Bellemare have enough to indict? And if he does, who will the prosecutor point the finger at, low-level operatives or higher-level decision-makers, including Syrian officials?

For now, we can only speculate. However, there seems less and less doubt that the two-year tenure of Mr Brammertz damaged the prosecution’s case, perhaps fatally. Mr Bellemare also discredited the tribunal by awaiting its formation before releasing the four generals, when, aware that there would be no indictments, he could have requested that the Lebanese authorities do so earlier.

Worst of all, key figures have left the tribunal one after the other, including Mr Bellemare’s chief investigator and two registrars. This implied, at the very least, that these individuals did not expect indictments in the foreseeable future; but in several specific cases the exits also hinted at Mr Bellemare’s managerial shortcomings.

Indictments may come later this year, but it seems doubtful, given what we know, that those who ordered the assassination will be charged. The zeal with which the tribunal’s president, Antonio Cassese, has pressed for this deadline indicates he is putting pressure on Mr Bellemare. Mr Cassese knows that the tribunal’s funding is closely tied to signs of genuine progress. He is right to be worried.