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.