February 25, 2010 - Daily Star - Is Bellemare slowly preparing to bail out?

By Michael Young

An interesting news item has appeared lately in several Arabic newspapers, including the local Al-Liwaa. Reports, citing Lebanese judicial sources, suggest that the prosecutor of the Special Tribunal for Lebanon, Daniel Bellemare, will soon instruct his Beirut office to issue legal orders to interview “Lebanese personalities,” whose testimonies he can use to build up indictments. Bellemare will supposedly ask the Lebanese to select 300 soldiers to implement the summons orders.

The story has not been confirmed by Bellemare’s office, so it’s right to be careful. However, the story makes rather more sense than all those other leaks about the tribunal’s work, and this for several reasons: It was always viewed as a distinct possibility by observers that Bellemare might hold a round of interviews in the interim before issuing indictments, if indeed indictments ever come. And an analysis of the tribunal’s work indicates why such a course of action might be necessary.

We can assume that Bellemare does not have enough to indict anyone today, otherwise he would have already issued indictments. Nor does his legal strategy appear to be a factor in the delay. Had Bellemare been near to issuing indictments, it is highly doubtful that his chief investigator, Naguib Kaldas, and the tribunal’s registrar, David Tolbert, would have announced that they were leaving at the end of this month.

If Bellemare does not have enough to indict, that means he is still pursuing an investigation to gather the information required to draft accusations that can hold up in court. There are essentially two sorts of information the prosecutor must rely upon: old information that he and his predecessors assembled during their years of work; and information that Bellemare’s investigators must pull together starting now. However, unless we missed something, there appears to be no police investigation taking place today in Lebanon, or anywhere else for that matter. The staff in the Beirut office has been drastically reduced, with most investigators having either been released or living in The Netherlands.

It follows from this that Bellemare and his team are relying on what United Nations investigators collected previously, including testimonies, telecommunications intercepts, forensic evidence, and so on. But if the prosecutor still remains unable to build indictments on the basis of that information five years after the assassination of Rafik Hariri, it is probably a safe bet to argue that he desperately needs new material. No one doubts that Bellemare knows who committed the crime, and the particulars of how it was carried out. But that’s not necessarily enough to indict, which requires testimony based on fresh leads, arrests, and, most important, suspects willing to point the finger at other suspects.

In that context, the reports that Bellemare intends to bring witnesses in make more sense. Aside from the practical fact that such an undertaking creates the impression that the prosecutor is doing something amid growing doubts that the UN investigation has advanced since 2006, it would serve three other crucial purposes.

First, it might allow Bellemare to supplement his apparently thin testimony files, particularly when it comes to Lebanese participation in the Hariri assassination. Still, it doesn’t seem especially probable that the prosecutor will get much more out of such a process than he and his predecessors did from questioning witnesses earlier, unless he plans to question new witnesses. That seems to be the real point of the exercise.

Which leads us to the second purpose. There are unconfirmed reports that Bellemare has had trouble bringing in witnesses during the past year to give testimony, because they have refused his summons. The story is that the prosecutor asked the Lebanese authorities to assist him, but given the nature of the parties he sought to question, the authorities replied there was little they could do to help. If that is correct, a new round of summons may just be a way of putting the Lebanese on the spot and compelling them to take on their responsibilities in the investigation.

Which leads us to the third purpose. If the Lebanese do not bring in the witnesses whom Bellemare asks them to bring in, or even some key figures among them, this could provide the prosecutor with a pretext to announce that he does not have enough in hand to bring indictments. The blame, however, would fall on the Lebanese, not on Bellemare and the United Nations. Lebanese officials should be aware of the prospect for such a scenario, and probably are. Which is why you have to wonder whether the judicial sources who leaked about Bellemare’s alleged scheme did so to derail it – or to shift the onus onto his shoulders.

Whatever the answer, if Bellemare does call in new witnesses, this will be more a maneuver on his part than anything else. At this late stage the prosecutor knows very well who will offer testimony and who will refuse to do so. And he knows this because he spent a year as commissioner of the UN investigating team before becoming prosecutor. If he forces the issue now, his primary objective would be to justify his own failure.

In recent weeks, the former justice minister, Charles Rizk, has appeared on television talk shows to discuss the Hariri investigation, which took place largely during his days in office. Though Rizk expressed optimism about the outcome of the investigation, that was merely a gloss over his pointed criticism directed against the work of Bellemare and his predecessor Serge Brammertz. Rizk’s main beef was that the two men had placed the burden of detaining suspects, above all the four generals, on the Lebanese judiciary, without having enough proof to validate this.

Charles Rizk is both intelligent and experienced. His statements may indicate that, somewhere, he is beginning to smell a rat, and doesn’t want to be made the fall guy for the poor work of the UN commission. If Bellemare is preparing to shift the blame onto the Lebanese for the absence of indictments, Rizk perhaps decided to beat him to the punch. You really have to wonder if the tribunal can still be effective in this atmosphere.