Thursday, November 25, 2010

Trials and tribulations for Mr. Bellemare

The documentary aired by the Canadian Broadcasting Corporation earlier this week has set in motion various conspiracy theories. However, the urgent question is what the information disclosed means for the case that will be presented by Daniel Bellemare, the prosecutor of the Special Tribunal of Lebanon, presumably in the near future.

The program provides compelling evidence of Hizbullah’s alleged involvement in the assassination of the former prime minister, Rafik Hariri, based mainly on telephone analyses. These analyses, the CBC contends, were significantly advanced by the doggedness of the late Internal Security Forces captain, Wissam Eid, who was assassinated in January 2008. Eid’s boss, Colonel Samir Shehadeh, miraculously survived an earlier assassination attempt in September 2006.

Several things can be said about the matter. The first is that the detailed information in the documentary was not handed over recently to the journalist who broke the story, Neil Macdonald, therefore is not tied into recent political developments, as some are contending. This I know because I had heard that such documents were circulating at the beginning of this year (although I was unaware of their content). If one had to guess, the highly sensitive documents were passed on to Macdonald by someone unhappy with the lack of progress in the investigation. It’s best to keep an open mind on the agenda of a leaker, or leakers, but much of what Macdonald says about the shortcomings of the United Nations investigation between 2006 and 2008 under the stewardship of Serge Brammertz, like his criticism of Bellemare’s investigative and management skills, has long been echoed by others working with the investigation or familiar with its progress.

But let’s give Bellemare the benefit of the doubt. Unlike Brammertz, he appears to have seriously tried to investigate, even if the results until now remain, at best, uncertain. However, on the basis of the CBC report, does the prosecutor have enough to make his indictments stick – bearing in mind that we may not necessarily see indictments soon. Bellemare must first earn the formal approval of the pretrial judge, and this will be determined by the strength of his legal arguments. If these are found wanting, the prosecutor may be asked to rework his indictments.

Assuming his indictments are accepted, however, and that the details provided in the CBC documentary represent the core of Bellemare’s arguments, could he easily win a trial? Surprisingly, the revelations, regardless of how forceful they may look, suggest the prosecutor has a tough judicial climb ahead of him. Here’s why.

If the telephone analyses are Bellemare’s best shot, then as Macdonald pointed out in an article posted on the CBC website, he will first have to prove that the telephones used in the Hariri assassination were actually in the hands of Hizbullah members. Unless he has witness testimony affirming this, or suspects in custody willing to speak up, providing proof will not be easy. In fact it seems increasingly likely that Bellemare will suffer from two major handicaps in convincing the judges: his case may largely be conducted with suspects tried in absentia; and because of the dearth of witness testimony, brought on by Hizbullah’s secretive nature and its refusal to cooperate with the tribunal, the prosecutor may be overly reliant on circumstantial evidence – in other words indirect evidence that leads to conclusions effectively reached through deduction.

In an interview conducted with the Now Lebanon website last August, Bellemare defended circumstantial evidence, declaring “I am strongly of the view that circumstantial evidence is more powerful than direct evidence.” Circumstantial evidence is doubtless important in certain situations, but most lawyers would count it as less persuasive, and more difficult to prove, than witness testimony and documentary or physical evidence. There is also the matter of how much circumstantial evidence a prosecutor relies upon. That is especially relevant to Bellemare.

In a vast conspiracy like the assassination of Rafik Hariri, there are multiple circles of involvement and different levels of decision-making. For Bellemare to win his case, he will need to peel back the many layers and identify who did what when, and who said what to whom. He will need to shed light on significant segments of the crime to expose the whole. The most effective way of doing so is to have suspects in hand willing to spill the beans, and physical or documentary evidence to lend credence to what they say. But to prosecute a complex political killing by relying heavily on conclusions reached through deduction against suspects most or all of whom are not in court can only favor the defense.

No matter how compelling is the material passed on to the CBC, it only casts light on a small corner of the Hariri assassination, and most probably not the one disclosing who ordered the crime. That is why Brammertz’s two years in office were so damaging. The former commissioner focused on crime scene analysis, failed to arrest new suspects, pushed the burden of telephone analysis onto the Lebanese, and more generally did not competently advance his investigation. This was perhaps unintentional, but I am increasingly convinced it was intentional.

Now we are hearing Hizbullah and its political allies stating that Israel has infiltrated the telephone network, as if that will somehow help discredit the CBC’s information. But what the party must now accept is that this latest information cannot be explained away by false witnesses. It is considerably more difficult for the prime minister, Saad Hariri, to dismiss the hard work of Wissam Eid – work that ultimately cost the ISF captain his life – and subsequently that of UN telecom analysts, than it is for him to swallow the insidious idiocy of the false witnesses claim.

But come to think of it, who did kill Eid? Was it the Israelis? If so, that makes no sense at all, since his conclusions were pointing in the direction of Hizbullah, which is precisely, one assumes, what the Israelis wanted. The more those opposed to the tribunal try to manufacture ways to undermine its work, the more absurd their contortions become. Most worrisome is that UN ineptitude or manipulation may have already undermined the possibility of a successful prosecution, when or if the trial ever begins.

Friday, November 19, 2010

Trial or error?

After more than a year of doing nothing to burnish its public image, the Special Tribunal for Lebanon (STL) has lately gone the extra mile to familiarize journalists with its activities. This hasn’t brought greater insights into the investigation of the Rafik Hariri assassination, but it has created a sense among Lebanese that things are moving ahead on the trial front and that success might follow.

It is a pity, then, that success might not necessarily follow, even though this would represent a letdown of incalculable proportions. The attention of the Lebanese is on the indictments that will be issued by Daniel Bellemare, the STL prosecutor. Their interest is largely political, particularly if Hezbollah members are accused. However, from a judicial standpoint, indictments are only a first step, after which a long and complex legal process will unfold. Success can only really be measured by whether or not Bellemare identifies, and the tribunal punishes, both those who commissioned the assassination and who facilitated it.

Anyone who seeks a measure of justice would wish Bellemare the best. The push to blame so-called false witnesses will fail, because what Hezbollah and its allies seek to impose is a charade that forces supporters of the tribunal to engage in monstrous self-deception.

Then again, party pressure can sometimes work. On Thursday, it was reported that the BBC had pulled a documentary on the Hariri assassination, allegedly because it had not complied with editorial guidelines. More likely, as The Guardian reported, the BBC climbed down after journalist Ibrahim Amin of the pro-Hezbollah Al-Akhbar newspaper wrote that the intention of the program was “to implicate Hezbollah in the crime.” If the BBC caved in, then that is disconcerting news. On the other hand, other foreign documentaries are soon coming out on the killing, and no amount of intimidation in Beirut will stop that.

More problematic is the kind of case that Bellemare puts together. It seems likely that he has enough evidence to implicate certain individuals, and if we are to believe Hezbollah’s secretary general, Sayyed Hassan Nasrallah, party members will be blamed. Since Nasrallah has threatened to cut off the hands of whoever tries to arrest Hezbollah suspects, and since the Lebanese state is unlikely to test his resolve on that vow, the chances of a trial in absentia remain very high.

If the trial takes place in absentia, Bellemare will probably be lacking in witness testimony. While United Nations investigators did collect testimony in 2005, it is no secret that the commissioner at the time, Detlev Mehlis, was working mainly on the assumption that Syria had ordered the crime. That hypothesis was never abandoned by Mehlis’ successors. However, the most compelling electronic evidence that landed in the lap of the first commissioner after Mehlis, Serge Brammertz (who apparently, sensing the dangers, ordered that it be handed over to the Lebanese), and then Bellemare – evidence based primarily on the analysis of telephone communications — pointed to one angle of the crime, namely the circle of people who facilitated the assassination by reporting on Rafik Hariri’s movements.

Bellemare still has the testimony that Mehlis collected, but if he is wanting in witnesses on Hezbollah’s potential involvement in the crime, he may have to rely inordinately on other forms of evidence. And while his documentary and physical evidence might be persuasive, it is unclear whether or not it would be enough to reconstruct the decision-making hierarchy and specifics of Hariri’s killing. If so, Bellemare might have to depend more on circumstantial evidence, which means evidence derived through deduction from other facts.

And if Bellemare bases his indictments largely on telephone analyses and circumstantial evidence, but does not have much testimony to corroborate his information, then it will be difficult for him to win his case. Indeed, his delay in issuing indictments, one suspects, may come from the fact that he has had to firm up the circumstantial evidence to remove all possible doubts about what he will contend.

Once Bellemare issues indictments, the defense will have several months to prepare a rebuttal. The initial passion among the Lebanese for and against his decisions will be lost in a haze of procedural jousting between prosecution and defense. Yet it is then that we will be able to say whether Bellemare’s efforts might bear fruit or not. More significantly, it is then that we will be able to determine whether or not the two years of Serge Brammertz between 2006 and 2008, when the second commissioner arrested no suspects and did relatively little to advance his investigation, was fatal to the prosecution’s endeavors.

Unfortunately, the indictments, when they come, will not in any way spell triumph. We Lebanese should step back and take a deep breath. Politics is one thing, but an accomplished judicial course of action is something entirely different. Our tendency has been to confuse the two, and we may end up, not for the first time, deeply disappointed.