BEIRUT — 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, and failure to seriously consider evidence of Israeli involvement, among many others.