Friday, September 3, 2010

Rare Bellemare, an assessment

The interview conducted this week by NOW Lebanon with the prosecutor of the Special Tribunal for Lebanon, Daniel Bellemare, offered up interesting tidbits. Nothing in it was groundbreaking, but the give and take did help clarify Bellemare’s mindset, at a time when the prosecutor has generally been silent about his investigation.

Much attention was focused on two things Bellemare said. He observed that an indictment had yet to be drafted, but also that his team had made “huge progress.” The prosecutor said he was working on “the evidentiary process” to ensure his evidence was admissible in court. “If I file an indictment and there is no evidence, the whole structure collapses, and we will [find] ourselves in trouble,” he added.

Bellemare’s remarks suggested that he is concentrating specifically on the indictment, rather than on intermediate measures, for example a request that certain suspects be arrested in preparation for an indictment. It is quite possible that the prosecutor will yet engage in such a step, but, if so, nothing in the interview indicated this.

More interesting were Bellemare’s views of the nature of the evidence. To a question as to whether telephone data might represent circumstantial evidence, he replied: “Well, I would call circumstantial evidence conclusive. I think there has been some confusion on what circumstantial evidence means. I have read in a Lebanese newspaper that circumstantial evidence was no good. In the system I come from, circumstantial evidence is a number of little facts that, when you look at them on their own, they might mean nothing. But when you put them together, then the whole picture becomes irrefutable.”

Reading between the lines, Bellemare’s comments seemed to lend credence to those who believe that he will base his case substantially on circumstantial evidence. In fact, the first United Nations commissioner, Detlev Mehlis, and before him the Irish deputy police chief, Peter Fitzgerald, did much the same thing in their reports. Bellemare is right: Circumstantial evidence can sometimes point irrefutably in one direction, particularly in a case like the killing of Rafik Hariri, where there was one actor controlling the political and security environment in the run-up to the assassination.

But what Bellemare didn’t say is that circumstantial evidence is more difficult to uphold in court. The prosecutor may well have forensic evidence, telephone analyses and other examples of “solid” proof; but what he appears to have much less of is witness testimony from those involved in the crime from the angle Bellemare is evidently pursuing today, namely participation by Hezbollah. And without testimony, a good defense lawyer can open up breaches in an indictment, which is why Bellemare is taking so much time to make his case airtight.

Bellemare admitted to following how his investigation was playing out in the Lebanese media. However, he observed, “I am not influenced by what is said on TV. If I was to gauge my investigation along this, then I would be politicized. I have to go through the steps to make sure the result is a credible [step]. And that the people – the victims and their relatives – will have an outcome they are able to believe.”

That’s sensible, but as Bellemare knows, the Special Tribunal is a mixed Lebanese-international body, with the Lebanese providing the institution’s implementation arm. Even if the prosecutor pursues his investigation away from politics, as is his duty, he must also calculate how his every move affects, or is affected by, developments inside Lebanon. Lebanese politics may easily overcome Bellemare’s work, so that it becomes inevitable for the prosecutor to play some version of politics, principally through an effective communications strategy, even as he avoids getting entangled in side disputes with his detractors.

In other words, Bellemare is not functioning in a vacuum. It is part of any prosecutor’s role in a high-profile political case to be able to shape perceptions, to work the terrain in favor of his or her case, to defend his or her integrity and that of the investigating team, and to keep the guilty off balance. Bellemare has done poorly in virtually all of these categories, and he still does not have an official spokesperson more than three months after Radhia Achouri left her position. It speaks volumes that the NOW Lebanon interview was such a rarity.

The topic of funding did not come up, nor did Bellemare volunteer any information on it. That’s a pity, since it has become quite apparent lately that money may emerge as a chief concern if the prosecutor does not come up with an indictment this year. Nor did we discover what Bellemare hopes to learn from the controlled explosion that will be conducted this fall near the French city of Bordeaux, though it must have to do with bolstering his circumstantial evidence. The prosecutor also did not explain why Muhammad Zuheir al-Siddiq was no longer a suspect in the Hariri assassination. No one doubts Siddiq’s unreliability, but it appears that he provided, or was fed, information that he could not have made up.

If provided the opportunity, Bellemare might want to take back his unhappy comparison of the Hariri investigation with that of the Lockerbie bombing, which also “took years before the whole process was finished.” In light of the fiasco of the Lockerbie inquiry, the ongoing row in the United Kingdom over the release last year from prison of a Libyan intelligence agent accused of committing the crime, and a growing belief that the agent may have been made a scapegoat, Bellemare could have provided a more reassuring illustration.

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