Indict, Quit and Blame the System!

By Dr Franklin Lamb


It is unlikely, but not impossible, that Special Tribunal for Lebanon Prosecutor, Daniel Bellemare ever met, U.S. Senator Wayne Lyman Morse (Dem. Oregon), one of three Senators to vote against Lyndon Johnson’s fake Gulf of Tonkin resolution that authorized the US military to bomb North Vietnam a generation ago and a  leading American legal scholar. 
One can’t help thinking that Bellemare could use Morse’s  counsel on the subject of what some are calling  the Rafiq Hariri murder,  “ a Trial of the Century” while some international lawyers fear it could be a “Trial for a Century.”  Hezbollah Deputy Secretary General Sheikh Naim Qassem called the Special Tribunal for Lebanon (STL)’s pending indictment “an act of aggression against Hezbollah and Lebanon.” Others are calling the ITL project Israel’s 6th war against Lebanon.
Wayne Morse was the Senate’s acknowledged expert on courtroom Procedural Rights of the accused, whether in local, national, or international courts and in one famous Senate debate, the former law school Dean told his colleagues:  “ Senators,  I don’t have to remind you that without full Procedural Rights none of us have Substantive Rights in any Court of law, Local, State, National of International.”
What Wayne Morse meant of course was that the outcome of any Court or Administrative proceeding is largely  pre-determined by the  Procedures adopted by the tribunal.  And that is a major problem for those wanting the  Special Tribunal for Lebanon to represent justice and for Prosecutor Daniel Bellemare personally, who, said to be increasingly aware of the STL procedural pitfalls now reportedly wants out of what has increasingly become a farce dressed up to look like a Hall of Justice.
Prosecutor Bellemare, appears to be getting ready to heed his family’s wishes, advice of colleagues, and his own sinking feeling  about prospects for success with the Hariri case. He may be planning to do what many a Prosecutor has done with a seriously defective case that he is being forced to bring to indictment by “superiors”, even when he has serious doubts about its viability:  indict and quit and let the “system” deal with the aftermath.  Perhaps citing family or health issues “Bellemare will likely issue indictments to please the Americans and Israelis and then he may well get out of town, knowing that this case is thoroughly politicized and polarized and becomes more so every day.
According to a senior lecturer in International law at the LSE any indictment will be DOA (dead on arrival) and many at the STL realize this. The reasons include the growing doubts among STL and International lawyers regarding the scarcity of probative, relevant or material telecom data evidence to convict anyone.
State Department lawyers realized this months ago but did not calculate the growing Lebanese and now international skepticism over the path the STL is taking.  Time is running out for the indictment seekers.  Tel Aviv and Washington want the indictments out by December 15, before the STL, UN, State Department begin to shut down for the Holidays until after New Year’s.  The clock is ticking. 

On 12/3/10 the Saudi-owned Asharq al-Awsat reported on the intensifying  Saudi-Syrian efforts at a resolution while at the same time there is a widening split between US-Israel efforts on the one hand for a fast indictment and France and Saudi Arabia who was the indictment delayed.
The loose cannon of recent revelations about possible Lebanese traitors working with the US Embassy and even Lebanese governmental officials to aid Israel in  attacking Lebanon while using their positions to prevent the Lebanese Armed Forces from performing its most basic function which is  to defend Lebanon may weaken the rush to indict. 
Serious questions are being raised about the future of “Embassy Beirut” from revelations contained in current and soon to be released Wilkileaks, according to a UN Senate Foreign Relations Committee staffer.
Based on phone and internet discussions with international lawyers at the London School of Economics, the International Court of Justice in the Hague, and colleagues who work in the area of Public International Law an emerging consensus is developing concerning perhaps fatal procedural issues that continue to arise at the STL. 
Such problems make it unlikely that the Hariri Assassination case will ever go to trial. 
Some international lawyers who have worked on international tribunals, are familiar with Rules of Procedures at the ICJ and the ICC  and are following the STL are increasingly concluding that there will not be a Trial.
The first “Procedure Rule” for the STL was adopted as urged by the US State Department for the Tribunal to be sanctioned under Chapter 7 of the UN Charter.  This allowed UN forces to enforce any ruling issued by the Tribunal with the use of maximum force it deemed necessary. 
Since then a number of Procedural rules have been adopted in order to assure that Hezbollah is found to be a terrorist organization.  Among those made public to date is the decision to try those accused in absentia, a rarity in international tribunals that obviously does not allow the accused the chance to present a defense.
This was exactly Kofi Annan’s fear as he objected to elements in UNSCR 1757.
STL rules for admission of evidence, pleadings, hearsay evidence, demonstrative, circumstantial direct evidence are being broadened and to date, surprisingly  have not been effectively challenged by lawyers from the  195 UN Member States. 
Some resistance from amicus curie international lawyers is starting to jell and this growing skepticism is another reason for the ‘rush to indict’ pressure from Washington, Paris and London among other locals.
International tribunals are intended for crimes against humanity, serial war crimes, ethnic cleansing, and crimes like massacres but not for an individual case of assassination.
The claimed justification that Hariri's assassination threatens global security is obviously baseless. Bhutto was assassinated but she never got an international tribunal nor did (former Lebanese) PM Omar Karameh who was also assassinated (in 1987) while in still in office.
If anything, the Hariri case belongs in the International Criminal Court which was established in 2002.
International lawyers are comparing the STL with the tribunal for former Yugoslavia, which is dangerous. Shortly after an indictment was issued in that case, 8000 Muslims were slaughtered in Srebrenica, under the eyes of international forces. One analyst asked “Do "they" want civil war to break out in Lebanon after the indictment? Is this their scheme?”
Among dozens of evidentiary problems are the issue of several false witness, compromised physical evidence from the crime scene, serious contradictions regarding the weapons used to assassinate PM Hariri, failure to give sufficient attention to photos and video footage from the crime scene,  or conduct autopsies of the victims, presence of residues of enriched uranium reported by doctors who examined bodies of victims,  the errors involved in the arbitrary arrest of  four generals as ‘suspects’, rush to judgment concerning the involvement of Syria, staff leaks to preferred media outlets  sloppy investigative work including the harassment of  college students on campus and women at a South Beirut gynecological clinic, failure to seriously consider evidence of Israeli involvement, among many others.
In Lebanon, the Lebanese Forces and March 14 regard the STL as more important than stability.  So does Hilary Clinton in her statement of 12/3/10.
They want the indictment to be issued so that they study it and then say if they agree to it or not. But based on what? They couldn't decide on how to try false witnesses for six months (because obviously this will make some March 14 heads roll) so they may be incompetent on this issue as well.
On 12/3/10 the Saudi-owned Asharq al-Awsat reported on the intensifying Saudi-Syrian efforts at a resolution while at the same time there is a widening split between US-Israel efforts on the one hand for a fast indictment and France and Saudi Arabia who was the indictment delayed.
In addition to Bellemare’s departure, some staff and STL insiders reportedly believe that President of the Special Tribunal for Lebanon, Antonio Cassese must step down given his pro-Zionist activities and his often expressed views that, the armed resistance in Palestine, Lebanon, Iraq and Afghanistan should be tried for "terrorism". These views are seen as corrupting the judicial process given Cassese key role in making procedural and evidentiary rulings as the case proceeds.
According to a legal analysts based at the Academy of International Law at the International Courts of Justice in the Hague, the double standards in the STL are pervasive.
One example cited was that the ITL leaked that investigators interrogated Hezbollah members, yet when asked if Israelis were ever interviewed the Prosecutors Office is mute. In point of fact, an event said to have weighed heavily on Hezbollah’s decision to stop cooperating with the STL was the line of questioning and aggressive treatment five of its members received when Hezbollah asked them two years ago to meet with STL investigators. Reportedly, most of the questions had nothing to do with the individuals as possible suspects in the Hariri murder but rather the questioning covered security issues, sought personal information about Hezbollah leaders activities,  typical work schedules,  places frequented, home addresses, those in the Party who were friends with Rafiq Hariri, cars they drove, where they purchased gasoline etc.
Reportedly two were asked about what Hezbollah thought about Rafiq Hariri. They reported that Hezbollah admired the Prime Minister Rafiq. One reason is that Hariri more than once provided political counsel, sometimes cover, and insisted that the Lebanese resistance was just that, a resistance movement and hence exempted from the UNSCR 1559 and various  calls for the Hezbollah ‘militia’ to be disarmed.
According to PM Rafiq Hariri’s wife Nazek, she could always tell when Rafiq had met with Hezbollah officials, particularly Hasan Nasrallah, because he always returned from such meetings in a good mood and energized.
The men used aids de camp to arrange meetings that only Rafiq’s immediate family knew about. Knowing that Israel had total control of Lebanon’s phone system, Rafiq Hariri would sometimes ask his interlocutor, “Do you have fruits?”, meaning, was it convenient for he and Nasrallah to meet.  If it was, Rafiq Hariri would come to Dahiyeh and visit, usually in the middle of the night.  Hezbollah’s Secretary-General once wrote that he felt that PM Hariri understood Hezbollah and understood him personally. Both came from South Lebanon villages and from families of very modest means. Both lost cherished sons. Both knew Lebanon’s position in the region and internal political configuration were not ideal and sometimes easy prey for foreign adventures. Both were good Muslims. one Sunni the other Shia, and deeply believed in dialogue and finding common ground while eschewing petty antagonism over differences in Koranic interpretation in favor of Muslim unity and respect for Lebanon’s Christian communities. Both appeared to relish their private conversations which are said to have ranged from internal, regional, and international politics, to family, Palestine, history, religion, telling each other jokes, and just ‘hanging out.’ 
By all accounts they respected one another and developed an abiding friendship.  Both were Patriots and despite sometimes being accused of being too cozy with this or that external politic al power centers, both viewed themselves as Lebanese, “first, last and always”.
A family member of PM Hariri remembers the Martyr Hariri saying, more than once to Nasrallah, “the day the government decides to disarm the Resistance that’s the day I quit politics.”
That there will likely not be a trial in the Hariri case assassination case is of little concern to just about everyone, except the Hariri family who seek closure and justice. Israel and the US do not need or even want a trial anymore.
Israeli Knesset member, Tzahi Hanegbi,  expressed hope on 11/10/10  that the Special Tribunal for Lebanon could open a battle with Hezbollah, amid Israeli worries of losing a golden opportunity for a direct confrontation with Hezbollah. According to Hanegbi, “It’s not important that the Lebanese who carried out the assassination be prosecuted. What’s even more important is to portray Hezbollah as a terrorist party which killed a popular and beloved leader in Lebanon.
Gabi Ashkenazi said this week that Israel is closely monitoring the repercussion of the indictment to see if they might reach the border.
An indictment will serve US-Israel projects swimmingly as the public quickly tires of this charade the one narrative that will be repeated for years will be:  “Shia Hezbollah was indicted for killing the Sunni Hariri so let’s go hang em!” Only frustrated international lawyers will be interested in the flaws in the case. The important “historic fact” will forever remain the Indictment.  When the indictments are issued everyone can go home.  Other events will likely overtake this story and it will likely fade surprisingly fast for it was never much about the murdered Prime Minister and the other 20 killed and dozens injured. It was about Hezbollah being the last bone in Israel’s throat and the necessity of seeing the Lebanese Resistance destroyed by any means possible.

  Quantum Note: Jakarta Memories

Dr. Franklin Lamb is Director of the Sabra Shatila Foundation in Lebanon. He is working with the Palestine Civil Rights Campaign (PCRC), in Lebanon to encourage its Cabinet and Parliament to enact basic civil rights legislation for Palestinian refugees, including the right to work and to own a home. Dr Lamb is a regular contributor to Opinion Maker.