By Ghassan Karam
Let us be clear, from the outset, that there is no institution, official or person anywhere in the world that is to be held immune from criticism especially when the subject has betrayed and/or violated the principles with which they have been charged. But to be accused of having committed an act that the subject has not done is the epitome of injustice and demagoguery.
It seems to have become fashionable among Lebanese individuals, politicians, the media and political parties to never let an opportunity go by without making a statement about how biased, politicized and Israeli the Special Tribunal for Lebanon,STL, has become. Usually the only supporting documents for such accusations are often limited to a rehash of the undocumented charges that the STL has leveled accusations that are based on false witnesses.
Any investigation of the record would reveal that there is no justification whatsoever for the above position. There is no basis in fact for any of these accusations. After the horrid planned explosion that killed Rafic Harir, the former Prime Minister of Lebanon and 22 other individuals a one month (Feb. 25 – March 24, 2005) fact finding mission was set up by the United Nation and headed by Peter Fitzgerald. This was later followed by the creation of the United Nations Independent International Investigation Commission, UNIIIC, whose function was to help the Lebanese authorities investigate the deadly explosion of February 14, 2005. The UNIIIC was established on Apr. 7, 2005 through Security Council resolution 1595. Mr. Detlev Mehlis was put in charge of this Commission that proceeded to issue two reports under his tenure ship that ended at the end of 2005. The first report by the UNIIIC, released on October 20, 2005, summarized the progress on the investigation by stating the belief that such a sophisticated operation was a few months in the planning and that it could not have conceivably been carried out without the knowledge of both the Syrian and the Lebanese security services who were known for their almost total and complete control on Lebanon at the time. Yet it is crucial to note that the report ended by stressing that all parties are entitled to the presumption of innocence until proven guilty. The UNIIIC did not indict anyone but merely reported what its investigations have uncovered. A second progress report was issued by the UNIIC ,still under the leadership of Mr. Mehlis on Dec. 20 2005 in which the commission stressed that it is continuing its line of inquiry and that it is also reassessing in order to ”close out any lines of inquiry which no longer have a direct bearing on the case”. This was the last report by Mr. Mehlis who resigned and was replaced by Serge Brammertz who issued the third progress report of the UNIIIC on March 16, 2006 in which he made it clear that the commission was investigating those who have deliberately misled the investigation.
The UNIIIC continued to issue its periodic reports under the leadership of Mr. Brammertz until he resigned effective January 1, 2008 when Daniel Bellemare was appointed as a replacement until the expiration of the UNIIIC mandate at the end of 2007.
Meanwhile the United Nations Security Council had established the Special Tribunal for Lebanon upon the request of the Lebanese state. The Security Council did so under chapter 7 of the United Nations Charter. The negotiations between Lebanon and the United Nations determined the structure that would become the STL: a Registry, Chamber with a pretrial judge, and a Prosecutor. The selection committee had recommended that Mr. Bellemare be appointed as the prosecutor for his familiarity with the details of the investigations that had been carried so far both by the Lebanese authorities and by the now defunct UNIIIC. But it is important to note that when the STL was established the UNIIIC had ceased to exist.
The STL became operational on March 2009 and that was when the Pretrial judge, an independent international jurist who is not a member of the Chamber, exercised his authority to review the evidence upon which the Lebanese authorities had held individuals in this case in custody. The Pre trial judge determined, at the earliest period possible, that the 4 generals held in custody should be released for the lack of evidence against them. Up until this moment the STL has not issued any indictments of anyone and has not made any accusations or issued any other rulings on this matter.
Based on the above, admittedly condensed and brief reading of the developments it is clear that:
1. There is a clear and distinct separation between the UNIIIC and the STL.
2. The Lebanese public and the media have failed to make that distinction.
3. UNIIIC was established to help investigate. It could not and did not issue indictments.
4. The Prosecutor of the STL happens to be the same individual who led the UNIIIC as its mandate expired. This, however, does not make the UNIIIC an organ of the STL.
5. The STL has developed a sophisticated set of rules under which to operate including a detailed account of the rights of the accused, and an independent Pretrial judge to review and approve indictments.
It should be obvious, based on the above that the barrage of daily accusations notwithstanding, there are no legal, rational or logical grounds to besmirch the integrity of an organization by constantly making allegations to which it is not even peripherally connected. The common complaint that the STL anchored its case to the testimony of false witnesses is patently false as the STL did not exist when the issue of false witnesses surfaced and since it must be also emphasized that the UNIIIC was aware of the false witnesses and said so in its reports. The UNIIIC, just like any credible investigator had a duty to weigh the evidence as it appeared and consequently to decide whether to use the evidence or not.
In an effort to get as much clarity as possible on this case a question was submitted to the STL spokesperson, Ms. Issawi, whose response is very informative and revealing:
With regard to the relationship between the United Nations Independent Investigation Commission (UNIIIC) and the Special Tribunal for Lebanon (Tribunal), you are right to treat them as two distinct institutions. UNIIIC is separate from the Tribunal, which only began operating on 1 March 2009. UNIIIC’s mandate, according to United Nations Security Council Resolution 1595 of 7 April, 2005, was to assist the Lebanese authorities in their investigations in collecting information and evidence, but not to conduct prosecutions. Conversely, pursuant to Article 10 of the Tribunal’s Statute, the Prosecutor is responsible for the investigation and prosecution of persons responsible for the crimes falling within the jurisdiction of the Tribunal. Following the Pre-Trial Judge’s deferral order of 27 March 2009, the Tribunal now has primacy over the case and thus the legal framework is completely different, since the Prosecutor now has lead over the investigation. As such, the Prosecutor can use information and evidence collected by UNIIIC, in accordance with the Rules of Procedure and Evidence of the Tribunal.