January 3, 2009 - Daily Star - Hariri probe sticks to course, but no word yet on suspects

By Michael Bluhm

Year in Review
BEIRUT: In December 2008, more than three and a half years after the February 2005 assassination of former Prime Minister Rafik Hariri, UN Secretary General Ban Ki-moon announced that the Special Tribunal for Lebanon would begin functioning on March 1, 2009, in The Hague. However, it remains unclear when and against whom charges will be brought, and experienced prosecutors say any trial of suspects in Hariri's killing or in other political violence would likely not open until long after March 2009 due to procedural delays. On March 1, 2009, Daniel Bellemare will officially move from his position leading the UN commission investigating Hariri's killing and other attacks to become the tribunal's first prosecutor. His staff will also move from Beirut to The Hague, although Bellemare has said he did not yet know when the investigation here would end. The court could have major implications in the region, as many in the March 14 political camp have long blamed Syria for Hariri's killing and the string of political violence that has plagued Lebanon. Hariri's February 14, 2005, killing sparked mass protests that led to the exit of Syrian troops from Lebanon after a 29-year presence. March 14 leaders have also long been staunch backers of the tribunal; in April, then-Justice Minister Charles Rizk proposed in a letter to Prime Minister Fouad Siniora that the Lebanese government approve extending the mandate of the investigating commission - then set to expire on June 30 - only in exchange for Bellemare taking office as prosecutor on June 15.
Syrian President Bashar Assad, meanwhile, has denied any involvement in Hariri's killing and has said Syria will not allow its citizens to appear before the court, while some in the March 8 alliance here have voiced concerns that the tribunal could be manipulated for political ends. Syrian Foreign Minister Walid Moallem said on March 31 that the tribunal was being wielded as a political tool against Damascus, saying Syria had received and rejected "bargain offers" to terminate the tribunal in exchange for expediting a presidential election in Lebanon. Lebanon spent six months without a head of state until the election of Michel Sleiman in May after an accord brokered in Doha between the March 14 and March 8 factions. Since taking over the investigating commission at the beginning of 2008, Bellemare has repeatedly said he would remain neutral and apolitical and that his work would be based solely on evidence. "This is a non-political exercise," Bellemare said at a news conference at the UN this month. "This is a legal process driven by legal rules. "There is no politicization of the tribunal." But the retired Canadian prosecutor did not say anything about the progress of the investigation, although he did say Hariri's killing could be solved. "This is the first thing that I said on the very first day of my taking on the job in January 2008 - I said, 'I have not decided to leave retirement to be associated with a failure,'" Bellemare said. "I know what's in the file, which unfortunately I cannot tell you. I know that the progress that I've made makes me cautiously optimistic that this is moving forward and that we will break the case." In his reports to the UN on the investigation, Bellemare has written that a "criminal network" carried out Hariri's assassination and that "political motivation" spurred his killing. "The commission can now confirm, on the basis of available evidence, that a network of individuals acted in concert to carry out the assassination of Rafik Hariri and that this criminal network - the 'Hariri Network' - or parts thereof are linked to some of the other cases within the commission's mandate," said Bellemare's March 28 report, the 10th report issued by the UN International Independent Investigation Commission. The network existed before Hariri's killing, conducted surveillance of the five-time prime minister, was "operative" on the day of his killing and has continued to operate since the assassination, the report added. After the remark about the criminal network, Bellemare on April 8 told the UN Security Council in another report that he wanted to clarify that the investigation still indicated that political reasons stood behind the killing. "The direction of the investigation has NOT changed, and the Commission is still investigating crimes that are politically motivated," Bellemare wrote in his report to the Security Council, the first since he replaced Belgian prosecutor Serge Brammertz as head of the commission. "While previous reports have referred to the hypothesis of a network, what is new this time is that we now have the evidence of the existence of such a network and of its links." In addition, Bellemare wrote that Syria "has provided generally satisfactory cooperation" with the commission. The commission's first chief, German prosecutor Detlev Mehlis, had implicated the Syrian regime in the Hariri crime, but Bellemare's first report adopted the more careful style typical of Brammertz' reports. Bellemare did say in December, however, that the official establishment of the tribunal would mean a change for the four generals who were taken into custody by Lebanese authorities in September 2005 in connection with Hariri's assassination but have not been charged. The four suspects are Major General Jamil Sayyed, the former chief of General Security; Major General Ali Hajj, former head of the Internal Security Forces; Brigadier General Raymond Azar, the former chief of military intelligence, and Brigadier General Mustafa Hamdan, the former commander of the Presidential Guard.
Before May 1 next year, Bellemare must request that the Lebanese authorities turn over to the tribunal everything related to the case - including documents and detainees. Once moved to the Netherlands, the generals - who with their lawyers have kept their ongoing incarceration in the news - will then be able to petition the tribunal for their release, Bellemare said. The generals may be in custody, but any suspects named in indictments that Bellemare will later submit to the pre-trial judges will remain unknown to the public until the suspects have been apprehended.
Anyone indicted and taken into custody by the tribunal will also certainly raise legal challenges to the tribunal's legitimacy in advance of any potential trials, experienced tribunal prosecutors have said. Defendants will question the circumstances of the tribunal's founding, the extent of the UN Security Council's authority and the Lebanese Parliament's failure to approve the bilateral treaty on the court, the legal insiders said. One key item sure to be adjudicated is whether the tribunal has Chapter 7 authority under the UN Charter - Chapter 7 powers mean that all UN member states are legally required to cooperate with the tribunal.
Most in the legal community believe the Special Tribunal for Lebanon lacks Chapter 7 authority but the absence of those powers should not constrict the tribunal's effectiveness. Security Council resolutions - with or without the use of Chapter 7 - can be directly enforced on members states and supersede domestic laws as well as international treaties. In any case, all international tribunals have so far rejected all challenges to their legitimacy, but the procedure for hearing the challenges will only delay any future trial. At the tribunal's headquarters in The Hague, meanwhile, work is focusing on adding security measures and hiring staff, said tribunal registrar Robin Vincent added. A security fence should be completed around the tribunal - a former Dutch intelligence services office - any day, along with new screening facilities at the building's entrance and secure parking arrangements, he added. The tribunal continues to add dozens more employees, including staff for security, finance, purchasing and information technology. Construction of a courtroom should be completed next June. Renovations to the building should cost about $13 million, and in addition to that the UN has estimated the tribunal's first year of operations would cost about $38 million. The court's management committee has approved a roughly $51 million budget for 2009, although Vincent still has to work out the details of the expenditures, he said. The US, which led the drive to isolate Syria after Hariri's assassination, has kicked in $14 million of the $60.3 million pledged for the tribunal.