Monday, March 31, 2008

Justice in the Hariri case will be easier said than done

The Daily Star-Arab media
by Marc J Sirois

The incubation of the United Nations Special Tribunal for Lebanon has been an embarrassing affair for virtually everyone concerned - except the only people still detained in connection with the principal crime at hand. This is not an exoneration of the men in question, but it is an indictment of the process in whose clutches they remain. More than three years after former Prime Minister Rafik Hariri and almost two dozen other people were killed by a massive bombing in Beirut, no trial has taken place and no charges have been laid. Four senior members of the Lebanese security apparatus then operating under Syrian stewardship have been in jail since late August 2005. Initially, it was widely reported that the four generals - Jamil Sayyed, director of General Security; Raymond Azar, head of military intelligence; Ali Hajj, commander of the Internal Security Forces; and Mustafa Hamdan, commander of the Presidential Guard - had been "officially charged" in the crime by the Lebanese judiciary.

Now we are told that this was not precisely so, that in fact the authorities in Beirut filed "preliminary charges" but then placed the generals in "preventive custody" on the recommendation of the man who then headed the International Independent Investigation Commission (IIIC), German prosecutor Detlev Mehlis.

This raises all sorts of questions, none of them very flattering to either Lebanese or UN justice, but they constitute just one part of a multi-faceted boondoggle that has, thus far, managed to generate nothing but controversy and conspiracy theories.

Syrian President Bashar Assad's regime initially cooperated with Mehlis but then accused him of bias and basically offered some pointed travel directions for him and the horse on which he rode in. Damascus adopted a more conciliatory tack with the man who took over the IIIC in January 2006 , Belgian prosecutor Serge Brammertz, but even though he publicly commended the Syrians for their cooperation, he eventually ran into Assad's refusal to have any Syrian suspects tried anywhere but in his own courts.

Now Brammertz has left, too, and Canada's Daniel Bellemare has been tapped to take the case to trial. The latter had better do some serious studying of the evidence bequeathed to him, as well as of the nasty politics involved and how the two may intertwine. Otherwise the most he can hope to accomplish is a partial unraveling of the Hariri assassination, a victory that would be made that much more pyrrhic for having assured the more comprehensive destruction of Lebanon.

The terms through which the tribunal was to be created, including the prerogatives that its judges and prosecutors would enjoy, played a large part in reducing the Lebanese Cabinet to the rump that currently governs parts of the country and officially represents its people in international forums. Even - and perhaps especially - after the UN Security Council unilaterally established the court on paper, the purposes to which some players want to turn it remain a casus belli in waiting for Lebanon's next civil war. Periodically, more rabid supporters of the current regime in Beirut (led by the March 14 Forces coalition) sound alarms to the effect that the international community is on the verge of caving in to Damascene intransigence and making a deal that would spare some or all of the Syrian suspects in exchange for a promise not to stir trouble in Lebanon. Others state openly that the court should reopen political crimes committed here as far back as 1975 (although not, conveniently, those with which they themselves were associated).

The unsightly process has put enormous strains on this country, and despite all the heartache, there is a very real danger that the simple but powerful slogan of those most determined to obtain justice in the Hariri assassination - "The Truth" - will join the ranks of its victims.

One cause is a clash of perceptions regarding the respective approaches of Mehlis and Brammertz, a contest joined with greater enthusiasm by various shills here and in America than by either of the principals, especially the latter. Of particular unhelpfulness is the analysis of commentators whose overt bias is compounded by their lacking even the rudimentary knowledge necessary to feign so much as basic understanding of how the administration of justice takes place in a civilized setting.

We are treated, therefore, to vapid expansions on Mehlis' questioning of Brammertz's "failure" to publicly identify additional suspects in the two years that he ran the IIIC. Mehlis himself, who has lately made the rounds of media outlets like The Wall Street Journal and Lebanon's LBCI Television, has since wisely stepped back a little from that position, but it has been taken up with gusto by lesser lights. Informed by re-runs of the mal-informed courtroom dramas that once infested American television before "reality" programming made us miss even them, these "analysts" imagine that being able to name all the characters on "Law & Order" equips them to appraise the relative merits of Messrs. Mehlis and Brammertz. The effects of these fantasies are exacerbated, too, by the fact that on at least one level, the German followed a more or less American approach and the Belgian did not: The former publicly identified suspects, while the latter took a much more circumspect approach.

I'm no lawyer, but even I know that many of the tactics employed in the US justice system(s) (50 state set-ups, innumerable county ones, a heavily politicized network of federal courts, various appendages operating in the parallel universe known as the District of Columbia, etc.) are a source of considerable mirth among denizens of more coherent - and more reliable - jurisdictions throughout most of the industrialized world. The situation is not as bad as in Japan, where prosecutors obtain convictions or "confessions" in a chilling 99 percent of cases, but it is not far off. For all their frequent coddling of criminals, many of the American schemes still encourage prosecutors to employ the legal equivalents of blackmail, weapons of mass destruction , and terrorism.

The first comes when suspects are publicly identified (or threatened with same) when the evidence against them is relatively weak, a practice frequently aimed at forcing them to accept a plea bargain and/or to testify against others in order to save their reputations and/or avoid heavier fines and prison sentences. When the evidence is even scantier, the same people are often described as "persons of interest," sometimes because prosecutors fear being sued for what amounts to intimidating witnesses. The second is when US authorities make use of special legislation designed to coerce guilty pleas by freezing the assets of the person or company involved before they have been convicted of any offense. This essentially does away with the presumption of innocence, and it can be difficult for any defendant to resist such pressure when his or her entire life is thrown into chaos. Legal terrorism is what results when American prosecutors are allowed to withhold evidence against their targets until the last possible moment, preventing the defendant from mounting an effective defense. Some lawyers call it "trial by ambush."

What all this means is that neither the American system nor the TV version thereof is a useful standard by which to measure the proceedings in the Hariri case. Mehlis did identify some suspects, but only after leaks to the media had alerted his quarry. As for the idea that arresting people and gaining information by interrogating them is the only way to investigate a crime, it hardly applies to an international case in which a sovereign government refuses to turn people over for that purpose. There are several ways to skin the proverbial cat , but the fact of the matter is that if you lack the ability to lay your hands on a suspect, there is little point in letting him know how much - or how little - you know. There is even less in comparing Mehlis to Brammertz, at least at this stage, when you don't even understand the procedural options at their disposal, never mind the reasons they might have had for choosing some over others.

As for the four generals, it can only be hoped that they will get their day in court - and that this will be sooner rather than later. This is not a matter of sympathy but of ensuring that justice is both done and seen to be done.

Those who argue that the men in question do not deserve fair treatment because of the draconian habits of the security apparatus during their reigns miss several points. The protections afforded by the principles of due process, for example, are more important, not less, when the severity of the crime in question is acute. The records of the detainees have nothing to do with their rights, especially when a supposedly new regime has promised a departure from the standards in place during the period when those records were built. This is particularly true when so many members in good standing of the current establishment enjoyed the same status under the previous one: These ought to be wary of giving the impression that it is not so much the generals they want to keep locked up as the secrets they might otherwise divulge.

Selective enforcement of the law means, in effect, that there is no law at all, only the fiat of those who happen to be in charge on a given day. This is a lesson that Lebanon's political class should have learned during the era of Syrian "tutelage," one taught most painfully to none other than Samir Geagea, head of the Lebanese Forces and one of March 14's most outspoken hard-liners. Geagea rarely says anything with which I agree - but his incarceration for more than a decade was plainly at odds with at least the spirit and very likely the letter of the law. No one knows better than he that such miscarriages of justice rarely manage to accomplish their intended purposes, only to embitter the victims and to rally their supporters.

Marc J. Sirois is managing editor of THE DAILY STAR . His e-mail address is

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