Thursday, December 6, 2012

Making the Special Tribunal work

Last week, Sir David Baragwanath, the president of the Special Tribunal for Lebanon, visited Beirut, perhaps to remind the Lebanese that the institution he leads means business. I spoke to Baragwanath, who well understands the stakes in a tribunal that has progressed very slowly in recent years. Its credibility has suffered from a perception, on the critics’ side, that its work is politicized; and on the supporters’ side, that the United Nations investigation didn’t go far enough, accumulating woefully few facts for a broad indictment.

Baragwanath is a fine front man for the tribunal. A New Zealander with impeccable legal credentials, he succeeded the Italian Antonio Cassese in October 2011. Where Cassese was seen as a man who sometimes was willing to say too much, Baragwanath is careful not to fall into that habit, for fear of discrediting the tribunal’s work. He is blunt, however, even if that bluntness is often off the record.

As Baragwanath sees it, he has three jobs: He’s a member of the Appeals Chamber, which must deal with the sensitive matter of an unfamiliar legal jurisdiction while maintaining the integrity of the tribunal. This he must do by balancing dual requirements: to be fair and expeditious. “Every day that passes,” remarks Baragwanath, “is one in which the victims do not have their concerns addressed.”

The president must also wear a diplomatic hat, and is responsible for dealing with foreign countries, including Lebanon, to support the tribunal’s work. And third, Baragwanath has a general duty to ensure that the tribunal’s many branches function properly.

One thing that Baragwanath appears to have understood better than most is that the tribunal was established to serve a purpose beyond uncovering who killed Rafik Hariri and other victims of assassination. This makes for openness that is in refreshing contrast to the first years of the tribunal, when the prosecution seemed utterly unprepared for a public role that it had no choice but to play. Baragwanath will not allow everything he says to be published, but he will speak his mind enough for a listener to understand that he or she is not in the presence of a taciturn judge, indifferent to how the assassinations in Lebanon affected the society as a whole.

When the U.N. investigation was set up in 2005, the implicit assumption was that the Lebanese legal system did not have the means and autonomy to uncover the truth about the crime. Beyond that, the investigation was seen as a means of bolstering the Lebanese judiciary, to make it much more difficult in the future for such crimes to be repeated. The first commissioner of the U.N.’s independent investigative commission, Detlev Mehlis, was conscious of the need to be as transparent as possible with the Lebanese public, which contributed to his work as potential witnesses and therefore needed to feel secure in the effectiveness of the process.

When Mehlis left, the Lebanese were left with Serge Brammertz, who from a public-relations perspective was a disaster. It would be nice to say that Brammertz saw his public role as secondary to that as an investigator, yet he advanced very little in his investigation, even as he largely ignored the Lebanese. Not once did he address them directly. Brammertz seemed isolated, a careerist apparently uninterested in the implications of the crimes he was examining for Lebanese society.

Baragwanath is different and his visits to Lebanon are, partly, efforts to show that he cares. “The Lebanese people have unfinished business [with the legacy of assassinations],” he says, and the tribunal has embarked upon a number of initiatives in order to make itself known to the public and to the legal profession. Baragwanath has lectured to Lebanese lawyers’ associations and regularly meets senior judicial figures. As divisive as it may be politically, the tribunal is recognized as a legitimate body by the judiciary, as well as by the government, when that was not the case in 2009.

But one thing the tribunal will have to confront, and that Baragwanath will not discuss this on the record, is that there is a deep disconnect between the assassination of Hariri, which was always seen as a vast conspiracy, and the fact that only four individuals, most acting at the operational level, have been accused by the prosecution. What is needed for an accusation, of course, is evidence, and if the prosecutor cannot cast his net widely enough, then the inevitable conclusion is that the evidence is lacking. This tells us more about the quality of the investigation than about the tribunal or its president.

This disconnect cannot be the least of Baragwanath’s preoccupations, however, for it will influence the court’s reputation. During the proceedings, implicit questions will arise without answers. While the president’s responsibility is not to answer the questions, he cannot be eager to preside over an institution seen as wanting by the victims.

In that light, Baragwanath speaks highly of the prosecutor Norman Farrell, as he does of the head of the defense team, Francois Roux. Overall, he seems happy with his court. But again, for many Lebanese much will depend on the strength of the prosecution. For while those participating in the tribunal, Baragwanath among them, believe that the measure of success will be, in large part, whether “the verdict is impeccable,” based on the available evidence, as he puts it, what will interest the Lebanese is whether an indictment is persuasive and can stand.

For them that will be the true benchmark of success, not whether the tribunal functions in an efficient way. Sir David Baragwanath, to his credit, would seem to have that angle covered.

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