Friday, December 23, 2011

Bye-bye Bellemare

Little was said in Beirut after Daniel Bellemare, the prosecutor of the Special Tribunal for Lebanon, declared that he would not renew his contract when it expires next February. Regardless of what you will hear from Lebanese supporters of the institution, the development represented a fresh setback in a long-awaited trial process.

Bellemare cited health reasons for his decision, and his apparently extended stay in Canada is not the first time the prosecutor has had to interrupt work because of an, as yet unidentified, ailment. However, this is not an imaginary illness, just as the late Antonio Cassese’s cancer was not imaginary, despite speculation from some in Beirut. 

Unlike Cassese when he stepped down as tribunal president, Bellemare did not time his statement with the tribunal’s appointment of a replacement. The prosecution is functioning, but the possibility that there will be an interval between the termination of Bellemare’s mission and the arrival of someone else, like the fact than a new prosecutor will need time to become familiar with the file and may alter the legal strategy, suggests we may not see a trial soon.

There are other uncertainties as well. The tribunal’s indictment of four Hezbollah members will not be an easy one for the prosecution to make stick. An accusation based on so-called “co-location” analysis of telephone communications is largely circumstantial. Even if the evidence is compelling, the defense will find wide spaces to challenge the prosecution’s case on technical grounds, assuming of course that no stronger proof is presented to buttress the indictment.

We might also ask how the difficulty of the case will affect the search for a successor to Bellemare. An ambitious young judge may prefer to stay away from a trial that has a better than even chance of turning into a legal setback. That would favor a retired judge, as some observers of the tribunal have predicted. The risk in that case is that we will have someone brought out of mothballs with little professional incentive to aggressively deepen the investigation. At the same time, he or she may have a fine curriculum vitae, but not the experience of terrorist crimes necessary to expand the inquiry and win a trial.

And expanding the investigation is necessary at this stage. What we have is a crime without an articulated motive. We know that four Hezbollah members allegedly participated in the assassination of Rafik Hariri, but until now the special tribunal hasn’t told us why. That may be remedied, but for it to be remedied we need more indictments in what was a broad conspiracy. But to get more indictments, we need a forceful investigation building on motive.

Don’t’ hold your breath when it comes to a forceful investigation. However, might there be other indictments? Perhaps. Some believe there will be other suspects named, though at the operational level. Bellemare’s departure does not bode well if we’re expecting substantial progress in the coming months, or even beyond that. Had Bellemare intended to issue a second round of indictments, he would likely have announced them when informing the public of his exit--after agreeing with the special tribunal on a replacement. That Bellemare put out his departure statement without touching on indictments, and without a replacement being named, may be a hint that if there are further indictments, they will await a new prosecutor. 

Understandably, skepticism reigns. I wager that the special tribunal will never indict, or at least not convincingly indict, senior decision-makers in the Hariri assassination. The reason for this is that the United Nations investigation went through two irreconcilable  approaches. The strategy of the first commissioner, Detlev Mehlis, was to begin at the top and identify senior officials who were involved in the crime, before moving downward to the operational level.

Serge Brammertz, Mehlis’ Belgian successor, overhauled that strategy, exploring from the bottom up. He also focused on analyzing the crime scene, but much less on arresting suspects. Shortly before leaving, he admitted to his Lebanese counterparts that his investigation had not substantially progressed. To dispel doubts about this, remember that Bellemare needed a full two and a half years more to produce a final indictment. And even then he designated only four men from the middle and lower rungs of the conspiracy, on the basis of telephone data initially evaluated by two Lebanese police officers, Samir Shehadeh and Wissam Eid, not by UN investigators.

Bellemare’s return to Canada may slow the trial, but it will not, otherwise, cause more damage to an investigation that was flawed from the moment Brammertz took over. That doesn’t exonerate Bellemare from accepting, and defending, a botched enterprise. But such dissembling has been par for the cours

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