Thursday, December 23, 2010

Defining success in the Lebanon tribunal

In an effort to be more transparent, this week officials responsible for outreach at the Special Tribunal for Lebanon sought to clarify for journalists the probable timeframe leading up to the formal issuing of indictments in the assassination of the former prime minister, Rafik Hariri. The Lebanese should not hold their breath.

You might have already noticed, but the prosecutor of the tribunal, Daniel Bellemare, took his end-of-year vacation without transmitting draft indictments to Daniel Fransen, the pretrial judge. The assumption at the institution is that he will do so soon. However, one must be realistic: If Bellemare failed to hand anything over before heading home for Christmas, it is not likely he will do so right after his return. Let’s assume optimistically, therefore, that the prosecutor gives Fransen draft indictments in mid-January, what happens then?

The estimation at the tribunal is that the pretrial judge will take at least 6-10 weeks, perhaps longer, to confirm the indictments in writing. That means we will not see anything final with respect to the accusations before March, or even April, if Bellemare meets a mid-January deadline. Fransen has the latitude to dismiss all or certain charges, or to ask for more evidence, which could add to the time needed for the tribunal to present confirmed indictments.

During the period when he is considering the draft indictments, Fransen has the option of accelerating proceedings by asking the appeals chamber to consider certain matters of law pertaining to the case. The pretrial judge will quite possibly take advantage of this rule, which involves holding public hearings. While no one would be named in these hearings, something would inevitably be revealed by the tenor of the legal discussions, which would provide the first real hint of the direction and substance of the prosecution’s case.

Until the formal confirmation of the indictments by Fransen, the contents will remain confidential. Once the confirmed indictments are issued, the names of the indicted will probably be made public, although in exceptional circumstances the prosecution or the defense might request that an indictment be sealed. Lawyers believe that naming the indicted publicly would become unavoidable if the tribunal has to take steps to conduct the trial in absentia, as the Lebanese authorities will, first, have to be notified of their identities.

Although Hizbullah and its allies have accused the court of being “politicized,” spokespersons for the institution insist that the only timetable employees are working on is a legal timetable. The continued delay in Bellemare’s finalization of draft indictments would seem to confirm that point. It was obvious months ago that the president of the tribunal, Antonio Cassese, was seeking to push the prosecutor to complete his preliminary indictments before the end of the year. He was forced to backtrack, doubtless at Bellemare’s insistence. In this context it is legitimate to wonder where and why there is a holdup. Does the prosecutor have evidence strong enough to prepare indictments that can pass Fransen’s muster?

Some experienced observers ask another pointed question. What happens if none of the indicted are in court once the trial begins? The expectation was always that somebody would be standing in the dock, even if not all the accused were. However, how can the tribunal function effectively, and credibly, if the entire trial is conducted in absentia? How would the defense coordinate its actions on behalf of the accused? And how might the absence of the indicted impact on Bellemare’s case, if he relies substantially on circumstantial evidence?

There is a risk the trial could become a virtual exercise, its proceedings detached from the reality of the Hariri assassination. Not only would that damage the tribunal’s integrity, it would undermine a principal purpose justifying the establishment five years ago of a Lebanese-international investigative and legal mechanism: bolstering Lebanon’s judiciary and ending impunity for political killings.

If I were related to someone killed or injured in the succession of murders and bomb attacks during and after 2005, I would have to start questioning whether the special tribunal will ever give me satisfaction. For some lawyers, the legal process itself is the measure of its own success. In other words a tribunal was set up, following an international investigation; the proper norms and regulations were respected; and the accused will be granted due process. Whether or not the trial leads to the guilty, and punishes them, is less vital than the fact that the institution fulfilled the role it was set up to fulfill.

From a strictly legal standpoint, that is perfectly defensible. Ultimately, tribunals are not formed under the condition that someone must necessarily be found guilty, except perhaps in totalitarian systems. Due process allows for the alternative that someone who stands accused might be declared innocent.

However, does that apply if the investigation leading up to the trial was flawed? In other words, if the United Nations inquiry was intentionally stalled, or simply conducted incompetently at a given stage, can we still take so detached, so academic, a view that only the good conduct of the trial matters? The investigation and the trial were always organically related; shortcomings in the first were necessarily going to impact the second. One cannot artificially separate the two.

And what of the human cost? Trials are not intellectual competitions, particularly criminal trials. People were killed by other people and many have suffered. It was always the right of the families of the victims to expect that everything would be done to ensure that the guilty would be identified and punished. Has everything been done to achieve that outcome? Only an affirmative answer should be the benchmark for success when the special tribunal eventually closes its doors; not the issuing of indictments or scholastic pride in a remote legal process that ends up in a cul-de-sac before an empty courtroom.

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